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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Carpenter (10/26/2007) sp-6179

State v. Carpenter (10/26/2007) sp-6179, 171 P3d 41

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


STATE OF ALASKA, )
) Supreme Court No. S- 10700/10709
Appellant, )
) Superior Court No. 1JU-00-1153 CI
v. )
) O P I N I O N
KAREN CARPENTER, )
WESTWOOD ONE, and TOM ) No. 6179 - October 26, 2007
LEYKIS, )
)
Appellees. )
)
)
KAREN CARPENTER,              )
                              )
          Appellant,               )
                              )
     v.                       )
                              )
WESTWOOD ONE and TOM          )
LEYKIS,                       )
                              )
          Appellees.               )
                              )

                              )
WESTWOOD ONE and TOM          )
LEYKIS,                       )    Supreme Court No. S-10739
                              )
          Appellants,              )
                              )
     v.                       )
                              )
     KAREN CARPENTER,         )
                              )
          Appellee.           )
                              )



          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Patricia A. Collins, Judge.

          Appearances:    Jason  T.  Mogel,   Assistant
          Attorney  General, Anchorage,  and  Gregg  D.
          Renkes,  Attorney General,  Juneau,  for  the
          State  of Alaska.  Ray R. Brown and Linda  M.
          OBannon,  Dillon & Findley, P.C.,  Anchorage,
          and  Jack  B. McGee, Law Office  of  Jack  B.
          McGee,  Juneau, for Karen Carpenter.   Leslie
          Longenbaugh  and L. Merrill Lowden,  Simpson,
          Tillinghast, Sorensen & Longenbaugh,  Juneau,
          for Westwood One and Tom Leykis.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          EASTAUGH, Justice.
          CARPENETI, Justice, concurring.
          BRYNER,  Chief Justice, with whom  CARPENETI,
          Justice, joins, dissenting in part.
          FABE, Justice, dissenting.

I.   INTRODUCTION

          Juneau  resident Karen Carpenter wrote a  letter  to  a
Juneau  radio  station complaining about the Tom Leykis  Show,  a
national  radio talk show broadcast locally by the station.   The
station  forwarded her letter to Tom Leykis, who read it  on  the
air  while making derogatory and sexually explicit remarks  about
Carpenter  and  making  other comments  that  allegedly  inflamed
listeners  and encouraged them to contact or confront  Carpenter.
Carpenter  sued  Leykis  and  his  producer,  Westwood  One,  for
defamation,  intentional  and negligent infliction  of  emotional
distress,  and invasion of privacy.  She also sued for spoliation
of  evidence,  claiming  Westwood One  and  Leykis  intentionally
destroyed  the  tape  of part of the show.   The  superior  court
granted  summary  judgment against Carpenter on  her  defamation,
negligent  infliction  of  emotional distress,  and  false  light
privacy   claims,  but  submitted  her  spoliation,   intentional
infliction  of  emotional  distress (IIED),  and  intrusion  upon
seclusion  claims  to  a jury.  The jury  found  for  Leykis  and
Westwood  One  on  the IIED and intrusion claims  and  found  for
Carpenter  against  Westwood  One on  the  spoliation  claim  and
awarded  her  compensatory and punitive damages against  Westwood
One.   The  parties  appeal  rulings concerning  the  defamation,
privacy, and IIED claims.  Westwood One challenges the spoliation
verdict   and   the  damage  awards.   Carpenter   disputes   the
constitutionality  of  allocating part of  the  punitive  damages
award  to  the  State  of Alaska, and she  and  the  state  raise
questions about  how that allocation should have been calculated.
We   reverse  in  part  and  remand  because  we  conclude   that
Instruction No. 17 erroneously limited the jurys consideration of
Carpenters IIED claim.  With a minor exception relating to costs,
we otherwise affirm the superior courts rulings.
II.  FACTS AND PROCEEDINGS
          Tom  Leykis is a radio personality; in 1998  he  hosted
the  Tom  Leykis Show, a four-hour radio talk show.   Sex-related
topics were a common feature of the program.  Westwood One,  Inc.
produced  and  distributed  the show  as  a  live  radio  program
broadcast five days a week by radio stations nationwide.   Juneau
AM radio station KJNO broadcast the show weekdays from two to six
p.m. in the Juneau area between June 8 and July 24, 1998.
          Karen  Carpenter, a Juneau resident,  first  heard  the
show on July 20, 1998.  Carpenter testified at trial that she was
concerned about its content, and expressed her concerns to a City
and Borough of Juneau assembly member on July 21 and also made or
tried  to  make  various inquiries to other government  officials
asking   about  decency  laws.   Carpenter  testified  that   she
contacted  three or four KJNO advertisers on July  22  and  asked
them  if they knew their ads were being run during the Tom Leykis
Show and whether they wanted their advertising dollars to support
the  content  of the show.  Carpenter then faxed  KJNO  a  letter
stating  that  she found the majority of the show very  offensive
and that she thought it was unsuitable to air when children might
be  listening.   Her letter informed KJNO that she had  contacted
and  would continue to contact Juneau radio advertisers whose ads
ran  during  the Tom Leykis Show and that she would do everything
in  [her]  power to have the show taken off the air  as  soon  as
possible.    The  station  placed  the  letter,  which  displayed
Carpenters fax number, in its public file.  Someone at KJNO faxed
a  copy of the letter to the Tom Leykis Show in California with a
handwritten  note, Have fun.  Carpenter testified  that  she  was
unaware  that,  as  required by federal regulations,  the  letter
would be placed in the stations public file.1
          Around  that time, Steve Rhyner, KJNOs station manager,
decided  to  take the Tom Leykis Show off the air  because  major
advertisers had complained about the program and Rhyner  objected
to  the  content of one particular show.  July 24, 1998  was  the
last day the Tom Leykis Show was broadcast in Juneau.
          During  the  July  24  broadcast, Leykis  made  several
remarks  about  KJNOs  cancellation of the  show  and  Carpenters
letter.   He  described those who objected to the  show  as  some
small  band of old prunes and old blue-hairs, nut cases  and  all
these  cretins.  He said: [A]fter we go, keep an eye on  our  web
site.   Im  going to find out who these people are [who cancelled
the  show], and well put it up on the web site.  He complained  I
hate  those  those old biddies who sit out there and have nothing
better  to do than to write in to radio stations.  He also  said:
Maybe  if  this woman had gotten laid in the last 50  years,  who
writes into the station and started making all these waves, maybe
she  wouldnt  be  complaining so much.  Im  not  kidding.   After
reading Carpenters letter on the air, Leykis commented:
          And  its  signed,  the woman  who  wrote  the
          letter   its  signed: Karen Carpenter.   Well
          Karen,  I  have a little something  that  you
          could  use  right about now.  [buzzing  sound
          intended to simulate the sound of a vibrator]
          
          Sit  on  this, you old prune.  Come  on,  get
          close to the radio.  Get right on top of  the
          speaker,  baby.  You moron.  You  jerk.   You
          and  your little band of nut cases out there,
          trying  to  decide whats going to be  on  the
          radio in Juneau, Alaska.  You know, maybe you
          ought  to go out and get laid once in awhile,
          huh? [buzzing sound]
          
          You  cretin.   Are your nipples getting  hard
          yet,  baby?  Feel the power.  You  cant  stop
          this  show.  Oh, you can stop Juneau, Alaska.
          But you cant stop me. . . .
          
          You  and your stupid  your stupid church  and
          your stupid religion, and you and your stupid
          god  damned bunch of marauders.  You  morons.
          Jerks.
          
          Im  enjoying  this.  Im sporting  wood  right
          now, just thinking about it.  Woo hoo. . . .
          
          . . . .
          
          Oh,  Karen Carpenter.  Karen Carpenter wanted
          our  show  off the air.  No, not  that  Karen
          Carpenter.   But  Karen,  sit  on  it,  baby.
          [buzzing sound]
          
          Oh,  yeah.  See, if you got more of this, you
          wouldnt be writing complaint letters  to  the
          station.
          
Later  in  the  show,  a  Juneau caller  attempted  to  broadcast
Carpenters home telephone and fax numbers, which were  listed  in
the local telephone directory under K.L. Carpenter, and expressed
the  hope that people would send her faxes.  The telephone number
was  partially bleeped out.  Around this time, according  to  the
trial  testimony  of  one  of  Carpenters  friends,  Leykis  also
encouraged  his listeners to make Carpenters telephone  ring  off
the  hook.  Later in the program a Juneau fan called in to praise
the  show.  Leykis responded: Well, we hate to lose you, but like
I say, stay tuned, cause were going to get back on in Juneau. . .
.   And  were  going  to  make that womans life  a  living  hell.
According  to  the  trial  testimony  of  another  of  Carpenters
friends,  this living hell comment was used repeatedly throughout
the broadcast.
          Carpenter  heard  the first part of the  broadcast  and
learned about other parts of the show from friends who had  heard
it.   She  testified later that she felt humiliated and  sexually
violated.  She testified that she received a telephone message at
her  home  that repeated part of what Leykis had said about  her.
She   also  received  several  threatening  faxes  at  her  home.
Carpenter was later diagnosed with post-traumatic stress syndrome
and an anxiety disorder.
          The  Tom Leykis Show was recorded in the studio on  VHS
videotapes  as  the show aired.  These tapes  were  stored  in  a
drawer  in the studio; as soon as the drawer was full, the  tapes
were  recycled,  erasing  the  recordings.   There  were  various
estimates of how long the tapes stayed in the drawer.  A Westwood
One  executive  estimated they stayed there four to  six  months,
while  the shows producer testified that judging by the  size  of
the  drawer,  [the  tapes]  go  back  six  to  eight  months,  or
approximately a year.
          Carpenter  wrote in an affidavit  that  she  believe[d]
she  requested a copy of the July 24, 1998 tape from Westwood One
and  never  received a response, and at trial she testified  with
certainty  to  having requested a copy.  She  also  made  several
requests  through her lawyers.  Attorney Robert  Reges  testified
that  he  sent an email to KJNO requesting a tape soon after  the
July  24  broadcast.   An  affidavit from  KJNO  employee  Justin
McDonald  indicates  that Reges did not  identify  himself  as  a
lawyer, and did not admit the true purpose of his request.
          On  December 24, 1998, five months after the broadcast,
another  Carpenter attorney, Jim Douglas, wrote a letter to  KJNO
and  Westwood  One, requesting a tape and making  it  clear  that
legal  action  might be forthcoming.  No address  was  given  for
Westwood One, just the name of the company and its street address
in  California.  Westwood One employees testified that  they  had
not  seen  the  letter,  but the shows producer  testified  to  a
general  recollection  that  the companys  legal  department  had
requested  the  tape and that upon receiving such  a  request  he
would  have  made  a copy of the tape and sent it  to  the  legal
department.   He  recalled  that  a  copy  was  found.   He  also
testified  that  he  would  not  intentionally  have  altered  or
destroyed  a  tape  of th[e] show, and that he  did  not  do  so.
Douglas testified that he never received a response from Westwood
One,  and  that KJNO told him that the station had forwarded  the
letter  to Westwood One.  The only copy of the July 24 show  ever
found  was  a  cassette  of  the first two  hours;  KJNOs  Justin
McDonald  provided  this tape and recalled in an  affidavit  that
Westwood  One had sent him the tape possibly before  the  end  of
1998.   He  kept the cassette with his personal tapes and  forgot
about  it until Steve Rhyner requested it in 2001.  There was  no
evidence  that  a recording of the second half of  the  four-hour
show ever surfaced.
          Carpenter filed a superior court complaint against  Tom
Leykis,  Westwood  One,  KJNO, Alaska  Broadcast  Communications,
Inc.,  and Steve Rhyner.  She alleged that Leykiss comments about
her  on  his  July  24,  1998 broadcast were  defamatory,  caused
negligent  and intentional infliction of emotional distress,  and
placed  her  in a false light.  She also alleged that Leykis  and
Westwood One spoliated evidence.
          Alaska  Broadcast  Communications,  Westwood  One,  and
Leykis filed summary judgment motions on all of Carpenters claims
on  grounds  that Leykiss comments were protected  by  the  First
Amendment and that Carpenter was a limited public figure  on  the
issue  of obscenity in the mass media.  Carpenter filed a  motion
for  partial  summary  judgment  on  her  claims  of  intentional
infliction of emotional distress (IIED), negligent infliction  of
emotional  distress, invasion of privacy by way  of  false  light
publicity  and  intrusion  upon  seclusion,  and  spoliation   of
evidence.  The trial court issued an order granting in  part  and
denying  in part the parties cross-motions for summary  judgment.
It   dismissed   Carpenters  claims  of   defamation,   negligent
infliction  of  emotional distress, and false light  invasion  of
privacy.  The court declined to grant summary judgment to  either
side on Carpenters claims of IIED, intrusion upon seclusion,  and
intentional spoliation of evidence.
          A  jury  trial  was held on those claims.   Leykis  and
Westwood  One  moved  for  a directed verdict  at  the  close  of
evidence  and the trial court took their motion under advisement.
The  jury  found  that  Westwood One had engaged  in  intentional
spoliation   of   evidence  and  awarded  Carpenter   $5,042   in
compensatory damages and $150,000 in punitive damages.  The  jury
also returned a verdict for Leykis and Westwood One on Carpenters
claims of IIED and intrusion upon seclusion and for Leykis on her
spoliation  claim.   As  to the spoliation claim,  Westwood  Ones
directed  verdict motion was converted to a motion  for  judgment
notwithstanding  the  verdict.  The trial court  ruled  that  the
directed verdict motions were moot as to the invasion of  privacy
and  IIED  claims; it denied the JNOV motion as to the spoliation
claim.
          Carpenter  moved after trial for an order declaring  AS
09.17.010(b)   and  AS  09.17.020(j)  unconstitutional.    Alaska
Statute 09.17.010(b) imposes a cap on non-economic damages awards
in  personal injury and wrongful death cases.  Because the  jurys
award  did  not  include non-economic damages,  the  trial  court
dismissed as moot the portion of Carpenters motion addressing  AS
09.17.010(b).   Alaska Statute 09.17.020(j) requires  payment  of
fifty percent of a plaintiffs punitive damages award to the State
of  Alaska.2   The  trial court ruled that  AS  09.17.020(j)  was
constitutional.  Carpenter  also objected  to  the  form  of  the
judgment  proposed by the defendants; she argued that  the  court
should  deduct from the punitive damage award the contingent  fee
(including  her  costs) she owed her attorneys before  the  court
awarded  one-half of the remainder to the state.   The  State  of
Alaska intervened to protect its interest in the punitive damages
award.  The trial court ruled that it would deduct the contingent
fee  from the punitive damages award before distributing one-half
of the balance of the award to the state.  The trial court issued
a  final  judgment on June 27, 2002.  On September 20,  2002,  it
denied  Carpenters motion to deduct fifty percent  of  her  costs
from the states portion of the punitive damages award.
          Leykis,  Westwood  One,  and Carpenter  all  moved  for
attorneys  fees.   The trial court denied all  fees  motions  and
ordered the parties to bear their own fees and costs.
          In  Case No. S-10709 Carpenter appeals the trial courts
grant of summary judgment against her on her defamation and false
light  claims.   She  also  appeals two  jury  instructions,  two
          evidentiary rulings, the ruling on the constitutionality of AS
09.17.020(j), and the denial of her motion to deduct  costs  from
the states share of the punitive damages award.
          In  Case No. S-10739 Westwood One appeals the denial of
its  JNOV  motion on the spoliation claim, and also  appeals  the
constitutionality  and  amount of  the  punitive  damages  award;
Westwood  One  and Leykis appeal the denial of their  motion  for
prevailing party attorneys fees and costs.
          In  Case  No.  S-10700 the state appeals the  pro  rata
deduction of Carpenters attorneys contingency fee from the states
share of the punitive damages award.
III. DISCUSSION
     A.   The  Superior  Court  Did Not Err in  Granting  Summary
          Judgment Against Carpenter on Her Defamation Claim.
          
          Carpenter appeals the superior courts grant of  summary
judgment  to  Leykis  and Westwood One on  Carpenters  defamation
claim.3    We  review  grants  of  summary  judgment  de   novo,4
considering the facts presented in a light most favorable to  the
non-movant  to determine whether any genuine issues  of  material
fact  exist and whether the movant is entitled to judgment  as  a
matter   of   law.5   We  apply  our  independent   judgment   to
constitutional law issues.6
          The elements of a defamation claim are: (1) a false and
defamatory  statement; (2) unprivileged publication  to  a  third
party; (3) fault amounting at least to negligence; and (4) either
per se actionability or special damages.7  A defamatory statement
  tends to harm the reputation of another so as to lower [her] in
the  estimation  of  the community or deter  third  persons  from
associating or dealing with [her]. 8 An expression of opinion  is
defamatory  if  the expression contains an implied  assertion  of
false fact and is sufficiently derogatory as to cause harm to the
subjects reputation.9  It is not necessary that the communication
actually cause harm to anothers reputation; its character depends
upon its general tendency to do so.10  If the context demonstrates
to  the  audience that the speaker is not purporting to state  or
imply  actual, known facts, the speech cannot be the basis for  a
defamation claim.11
          The  common law rule that a pure expression of  opinion
may  serve  as  the  basis for a defamation action  was  rendered
unconstitutional by recent United States Supreme Court decisions.
The  Supreme  Court  has  held  that  the  First  Amendment  bars
defamation  actions  if the allegedly defamatory  statements  are
pure expressions of opinion, not implied or stated assertions  of
false  fact.12  The Court recognized that [t]he freedom to  speak
ones mind is not only an aspect of individual liberty  and thus a
good  unto itself  but also is essential to the common quest  for
truth and the vitality of society as a whole.13
          The  superior  court granted summary  judgment  against
Carpenter  on  her  defamation  claim,  reasoning  that   Leykiss
statements  about Ms. Carpenter . . . [were] opinionated  insults
protected  by  the First Amendment.  The court held that  Leykiss
statements were hyperbole, used only for shock value,  and  d[id]
not state or imply any factual basis.  We agree.
          In  Sands v. Living Word Fellowship, we explained: [t]o
ascertain  whether  a statement is factual, courts  consider  the
type  of  language used, the meaning of the statement in context,
whether  the  statement  is verifiable, and  the  broader  social
circumstances in which the statement was made. 14  Many of Leykiss
remarks about Carpenter were pure insults that were not factually
verifiable.  Even those statements that could constitute  implied
factual assertions, such as those about Carpenters sexual habits,
were  not  factual  under the circumstances.  No  listener  would
understand  Leykiss  remarks about Carpenters  sexual  habits  to
imply  actual  facts about Carpenter.  Sex-related jokes  were  a
common feature of the show.  Even if Leykiss remarks implied that
Carpenter  was  in  fact  sexually frustrated  and  deprived,  no
reasonable  listener would believe that Leykis was purporting  to
reveal  actual,  known  facts about Carpenter.15   While  Leykiss
statements were offensive to any rational person, they  were  not
defamatory.16
          On   appeal,  Carpenter  argues  that  the  distinction
between fact and opinion is inapposite because Leykiss statements
fell  within categories of speech that are not protected  by  the
First Amendment.  She offers three grounds on which to hold  that
the  speech was unprotected: (1) it was indecent speech broadcast
when  children would likely hear it; (2) it was obscene; and  (3)
it constituted fighting words.
          For  her first argument she relies on the United States
Supreme  Courts  decision in FCC v. Pacifica Foundation.17   That
decision does not support her claim, however, as it only  decided
whether the government has the power to regulate indecent  speech
that  is broadcast by radio at times when children are likely  to
overhear it.18  Pacifica held that indecent speech is not entitled
to  absolute  constitutional protection and  that  under  limited
circumstances,   the   Federal  Communications   Commission   may
constitutionally  regulate it.  The agency may not  prohibit  the
speech  entirely, however; it may only channel the communication.
Thus the speech is unprotected only insofar as it subject to  the
agencys  time, place, and manner restrictions.  The  decision  is
therefore inapplicable to Carpenters defamation claim.
          Carpenters  other  two arguments  also  fail.   Leykiss
statements,  however offensive, do not satisfy the  three-pronged
test  for obscenity set out in Miller v. California.19  Likewise,
they  do  not fall within the classic fighting words category  of
unprotected speech.  The fighting words exception is  limited  to
words  that  by  their very utterance . . .  tend  to  incite  an
immediate breach of the peace.20  Leykiss statements, uttered over
the  radio, were unlikely to achieve an immediate breach  of  the
peace.   They may have encouraged listeners to retaliate  against
Carpenter, presumably by telephoning or faxing her at  home.   An
exhortation  for  action of that sort is relevant  to  Carpenters
IIED  claim.  See Part III.C.  But his words are insufficient  to
be the basis for a defamation claim based on a theory that Leykis
uttered fighting words.
     B.   The  Superior  Court  Did Not Err in  Granting  Summary
          Judgment  Against Carpenter on Her False Light Invasion
          of Privacy Claim.
          
          Carpenter  argues  that  the superior  court  erred  in
granting  summary judgment to Leykis on her claim of false  light
invasion  of  privacy.  A false light invasion of  privacy  claim
arises  when  the defendant publicizes a matter that  places  the
plaintiff  before the public in a false light.21  In many  cases,
the  publicity is defamatory, although a plaintiff need not  show
injury  to  reputation to prevail on a false light  claim.22   An
action for false light invasion of privacy differs from an action
for  defamation  because a defamation claim redresses  damage  to
reputation  while  a false light privacy claim  redresses  mental
distress   from  exposure  to  public  view.23   Like  defamation
liability,  however,  false  light liability  requires  at  least
knowing or reckless disregard of the falsity of the assertion  of
fact.24  Because opinions cannot be proved false, they cannot give
rise to false light liability.25  Carpenters false light invasion
of  privacy  claim relies on the same statements that formed  the
basis  for  her  defamation claim.  It therefore  fails.   As  we
explained   in   Part   III.A,  Leykiss  statements   purportedly
describing Carpenter were opinions, not false statements of fact.
     C.   Jury  Instruction No. 17 Potentially Prevented the Jury
          from Considering Carpenters IIED Claim Against Leykis.
          
          1.   The claimed error
          Instruction No. 18 expressly instructed the jury on the
elements   of  Carpenters  intentional  infliction  of  emotional
distress (IIED) claim.  But Carpenter argues that Instruction No.
17  erroneously restricted the jurys consideration  of  her  IIED
claim.
          The  text  of Instruction No. 17 effectively  prevented
the  jury from finding Leykis liable for words spoken to or about
Carpenter unless the speech fell within either one of two  narrow
exceptions.   Carpenter asserts that it was error  to  give  that
instruction because she was not a public figure and because  even
if   Leykiss   speech  was  entitled  to  some  protection,   the
instruction erroneously stated the law as to her IIED claim.26
          Carpenter  contends that the jury must  or  could  have
applied  Instruction No. 17 to her IIED claim, and  that  Special
Interrogatory 1 also misdirected the jury as to that claim.  That
special interrogatory asked the jury to determine whether Leykiss
remarks  about  Carpenter  were intended  to  provoke  a  hostile
reaction under circumstances where a clear and present danger  of
immediate violence existed.  Because the jury answered No to that
interrogatory,  Carpenter reasons that  Instruction  No.  17  and
Special Interrogatory 1 must have caused the jury to believe that
it  had no choice but to conclude that nothing Leykis said  about
Carpenter could support her IIED claim.  She concludes  that  the
instructional   error  was  prejudicial  and  that   a   properly
instructed jury could have found that Leykiss outrageous  conduct
caused  Carpenter  severe emotional distress.   That  outcome  is
entirely  likely,  she reasons, given that in  answering  Special
Verdict Form Question (11), the jury found Leykiss conduct to  be
outrageous.
          Leykis  argues that Instruction No. 17 correctly stated
the law and did not prejudice the jurys consideration of the IIED
          claim.  Citing Alaska cases,27 he argues that speech may be
punished  in  only  the most limited circumstances,  and,  citing
Hustler  Magazine, Inc. v. Falwell,28 he argues  that  the  First
Amendment  forecloses an IIED claim that is  based  on  the  same
facts  as a defective defamation claim.  He contends that because
Carpenter  claimed  emotional distress  inflicted  through  media
speech, it was appropriate to instruct the jury on constitutional
speech protections.
          The  propriety  of  jury instructions generally  raises
questions  of  law  that are subject to the independent  judgment
standard  of  review.29   Jury  instructions  to  which    timely
objections  were made are therefore reviewed de novo.30   Special
verdict forms are subject to the same standard of review as other
jury instructions.31  Errors in jury instructions are not grounds
for  reversal unless the errors are prejudicial.32  An  erroneous
instruction is prejudicial if it can be said that the verdict may
have been different had the instruction not been given.33
          2.   The  jury instructions, special interrogatory, and
               special verdict form
          This  claim of error requires us to consider the effect
of  Instruction No. 17, Instruction No. 18, Special Interrogatory
1, and parts of the special verdict form.
          Instruction No. 17 told the jury it could not  consider
as  a  basis  for  liability words spoken to or  about  Carpenter
unless the speech was unprotected for either of two reasons.   It
stated:
          The  law  protects most speech.  By  example,
          statements  of opinion, even if insulting  or
          distasteful, are generally protected  speech.
          It  is  only  in  limited circumstances  that
          speech  can  be punished or be the  basis  of
          liability for damages.  Therefore, you  shall
          not  consider words spoken to or about  Karen
          Carpenter unless you find that the speech  is
          not   protected  because  of  either  of  the
          following reasons:
          
          (1)   Speech  that is intended to  provoke  a
          hostile reaction under circumstances where  a
          clear   and   present  danger  of   immediate
          violence exists is not protected speech.
          
          (2)     Publication   of   private    factual
          information   about   an   individual    with
          knowledge  or  in  reckless  disregard   that
          disclosure  of the factual information  would
          be  highly offensive to a person of  ordinary
          sensibilities  is  not protected  speech.   A
          fact is private if (a) it is not known to the
          public, that is, not a public record and  not
          information legally available to  the  public
          or  the media; and (b) the private fact is of
          a  kind  that, if publicized, would be highly
          offensive to a reasonable person; and (c) the
          private fact is not newsworthy, that  is,  of
          legitimate concern or interest to the  public
          or an appreciable percentage of the public.
          
          Instruction No. 18 explained the elements of Carpenters
IIED claim:
          Karen  Carpenter claims that  Tom  Leykis  or
          Westwood  One  or  its  employees  or  agents
          intentionally inflicted emotional distress on
          her  by  virtue of a radio broadcast on  July
          24, 1998.
          
          For Karen Carpenter to recover for this claim
          of   intentional  infliction   of   emotional
          distress,  you must decide that  it  is  more
          likely  true than not true that Tom Leykis[s]
          or  Westwood One[s] or its employees  conduct
          was  extreme and outrageous and that  he/they
          intentionally  or  recklessly  caused   Karen
          Carpenter severe emotional distress.
          
          I  will  now  define extreme  and  outrageous
          conduct, intentional, reckless, legal  cause,
          and severe emotional distress for you.
          
There  is  no  contention  that this  instruction  was  erroneous
(although Leykis and Westwood One argue here, as they did  below,
that Carpenters IIED claim should not have been submitted to  the
jury).
          The    superior    court   gave   the   jury    special
interrogatories with an instruction that it was  to  answer  them
before   turning   to   the   special  verdict   form.    Special
Interrogatory 1 asked: Did Tom Leykis engage in speech related to
Karen  Carpenter that was intended to provoke a hostile  reaction
under circumstances where a clear and present danger of immediate
violence existed?  The jury answered No.
          The  court  also gave the jury a special  verdict  form
asking specific questions, including this question:  (1) Did  Tom
Leykis,  by  extreme  and  outrageous conduct,  intentionally  or
recklessly  inflict severe emotional distress on plaintiff  Karen
Carpenter?  The jury answered No.  The special verdict form  also
asked  whether  the  jury found by clear and convincing  evidence
that  the  conduct  of  Tom Leykis and/or Westwood  One  (or  its
employees or agents) was outrageous and thus subject to an  award
of punitive damages?  As to Leykis the jury answered Yes.
          3.   Distinguishing between Carpenters defamation/false-
               light claims and her IIED claims
               
          The  question  we  must  decide  here  is  whether,  by
prohibiting the jury from basing liability on words spoken to  or
about  Carpenter  unless it found the speech was unprotected  for
one  of  the two specified reasons, Instruction No. 17  may  have
prevented the jury from fully considering Carpenters IIED claim.34
The  question is important because the conduct that  she  asserts
was  outrageous consists largely of Leykiss conduct  in  speaking
words   to   or  about  Carpenter  during  the  broadcast.    The
          instructions did not define the phrase words spoken to or about.
The  literal and common-sense meaning  of that phrase encompasses
all  words  spoken to Carpenter, and all words spoken about  her.
This  meaning  renders the instruction applicable  to  all  words
Carpenter alleges were actionable.  Some of those words described
Carpenter in derogatory and humiliating terms and were central to
the  defamation  and false-light claims that we held  above  were
properly  dismissed.  But other words did not purport to describe
Carpenter.   A jury might interpret these other words  as  having
been  intended to invite listeners to contact her  and  make  her
life  a  living  hell.   We are concerned here  with  determining
whether  the  instruction  potentially prevented  the  jury  from
fairly  considering whether broadcasting these latter  words  was
outrageous conduct that could be the basis for IIED liability.
          We assume that an IIED claim that turns on the truth or
falsity of speech is subject to the same limitations that protect
speech  from  claims of defamation.  Thus, just as actual  malice
must  be  proved  by a public figure who is claiming  defamation,
actual  malice  must  also be proved by a public  figure  who  is
claiming  IIED  based on the same speech that  gives  rise  to  a
defamation  claim.35   Likewise, we assume that  just  as  actual
malice  must  be  proved by a plaintiff claiming defamation  that
arises  out of speech on a matter of public concern in  Alaska,36
actual malice must be proved by a plaintiff who bases a claim  of
IIED on the same speech.37
          Carpenter  argues  that the superior court  erroneously
considered  her to be a public figure and that Hustler  Magazine,
Inc.   v.   Falwell,38  which  applied  actual-malice  defamation
standards   to  an  IIED  claim  brought  by  a  public   figure,
consequently does not control Carpenters IIED claim.  The  United
States  Supreme Court has identified two bases on which  to  find
public figure status:
          In  some  instances an individual may achieve
          such  pervasive  fame or  notoriety  that  he
          becomes a public figure for all purposes  and
          in   all   contexts.    More   commonly,   an
          individual voluntarily injects himself or  is
          drawn  into  a particular public  controversy
          and  thereby  becomes a public figure  for  a
          limited range of issues.[39]
          
A  person  in  this  second category is often referred  to  as  a
limited-purpose public figure.40
          We  assume that whether Carpenter was a limited purpose
public figure would be important to her IIED claim if that claim,
like  her  defamation claim, turned on the truth  or  falsity  of
Leykiss  words  about Carpenter.  If the falsity of  those  words
were  a  necessary element of her IIED claim, whether she  was  a
limited  purpose  public  figure would  determine  whether  under
federal law she had to prove actual malice to prevail on her IIED
claim.41  Likewise, if the falsity of those words were a necessary
element  of her IIED claim, we assume that Alaska law also  would
have  required  her  to  prove actual malice  if  Leykiss  on-air
comments to or about her forming the basis of her IIED claim were
          about a matter of public concern.42
          But  because her only viable claim is not based on  the
truth  or  falsity of Leykiss words about Carpenter  and  is  not
based on harm to her reputational interest, we conclude that  the
heightened  protections  due  speech  about  public  figures  and
matters  of public concern do not altogether foreclose Carpenters
IIED  claims.   We  therefore  do  not  need  to  decide  whether
Carpenter  was  a public figure.  In Falwell, the  United  States
Supreme  Court  held that the First Amendment affords  heightened
protection  to speech in the area of public debate  about  public
figures,  regardless of whether the speakers motivation  was  ill
will,  hatred,  or  mere desire to inflict emotional  distress.43
Heightened  First Amendment protection does not  extend  to  IIED
claims based on speech that is not about a public figure or about
a  matter  of  public concern.44  We distinguish between  speech,
however crude, somehow contributing to the public debate about  a
public  figure  or  a  matter of public concern  or  directed  at
persuading the ultimate target to change her mind about a  matter
of  public concern, and speech intended merely to harass or cause
others  to harass the target.  Speech of the latter sort  is  not
entitled to First Amendment protection.  A defendants conduct  in
uttering  words  is  therefore  not  invariably  constitutionally
protected  from  claims alleging the tort of  outrage.   Not  all
words  are  entitled to First Amendment protection.   Instruction
No.  17  implicitly, but incompletely, recognized the distinction
in  telling  the  jury  of  two limited examples  of  unprotected
speech.
          Unlike her defamation claim, Carpenters IIED claim  was
not dependent on the truth or falsity of Leykiss words.  Although
her  IIED  claim as she presented it was based in  part  on  what
Leykis  said  in  describing her, it was also based  on  what  he
seemed  to  urge  his  listeners to  do  and  on  related  on-air
statements  directed at Carpenter that a jury might interpret  as
threats  to  organize an ongoing campaign of  harassment  against
her.   Her  defamation and IIED claims both arose  out  of  words
Leykis  allegedly spoke (or allegedly permitted others to  speak)
during  the  July  24 broadcast, and  Leykiss  conduct  allegedly
included the act of uttering or condoning those words.45  But the
essence  of  her  defamation claim was  the  alleged  falsity  of
Leykiss  words  purportedly  describing  Carpenter,  whereas  the
essence  of  the  viable part of her IIED claim was  the  alleged
outrageousness  of  his conduct in provoking  his  listeners  and
inviting them, some of whom, like Carpenter, lived in Juneau,  to
harass  Carpenter  and, with him, make her life  a  living  hell.
This  was what the trial court characterized as Leykiss  call  to
arms.  Likewise, Leykiss conduct allegedly included disclosing or
allowing the disclosure or partial disclosure of Carpenters  home
telephone and fax numbers to make it easier for audience  members
to  contact  her  at home.  Leykiss Brief of Appellee  recognizes
this  distinction between the two claims in stating that her IIED
claim  was  based  on  Leykiss conduct: Ms. Carpenters  emotional
distress  claim  was  based  on the allegation  that  Mr.  Leykis
provoked  members of his radio listening audience to  harass  her
and make her life a living hell, and disclosed her home telephone
          and fax numbers to facilitate their doing so.
          As  we  will  see in discussing what is to be  done  on
remand,  that does not mean that what Leykis said about  her  was
totally  irrelevant to her IIED claim.  But it does mean that  it
was essential that the jury be told accurately what consideration
it  could give to Leykiss words to or about Carpenter in deciding
her IIED claim.
          Such distinctions were drawn appropriately in Esposito-
Hilder  v.  SFX  Broadcasting,  Inc.46   A  radio  station  there
conducted  an  Ugliest  Bride contest that disparaged  plaintiffs
appearance.   The  court allowed an IIED  claim  even  though  it
recognized  that  no  defamation  claim  could  stand.   It  also
observed:
          We  are  not  unmindful of the constitutional
          issues  implicated in this case  and  in  our
          resolution  thereof.  In the  quest  for  the
          proper  accommodation between  the  right  of
          redress  for  infliction of  injury  and  the
          freedoms  of speech and expression  protected
          by the 1st Amendment, we have determined that
          the  States  relatively  strong  interest  in
          compensating  individuals for harm  outweighs
          the  relatively weak 1st Amendment protection
          to  be accorded defendants.  It is elementary
          that  not all speech or expression is  to  be
          accorded equal 1st Amendment protection;  the
          most jealously protected speech is that which
          advances the free, uninhibited flow of  ideas
          and  opinions  on matters of public  interest
          and  concern;  that  which  is  addressed  to
          matters  of private concern, or focuses  upon
          persons  who are not public figures, is  less
          stringently  protected [citing  Falwell,  485
          U.S.  46; Dun & Bradstreet, Inc. v. Greenmoss
          Builders,  Inc., 472 U.S. 749 (1985);  Gertz,
          418 U.S. 323].  Moreover, among the forms  of
          communication, broadcasting enjoys  the  most
          limited 1st Amendment protection [citing  FCC
          v. Pacifica Found., 438 U.S. 726 (1978)].[47]
          
          Likewise,  there was sufficient evidence  to  permit  a
jury to find that Leykiss words in issuing his so-called call-to-
arms   departed from the bounds of protected speech.   We  assume
that  a  broadcaster  seeking to avoid cancellation  in  a  local
market  may ridicule local critics, because debate about a  shows
cancellation is a matter of public interest and that those  sorts
of  words  are  therefore protected at least qualifiedly  by  the
First  Amendment.  But Leykis did not stop after  speaking  words
that  ridiculed  or humiliated the person he claimed  he  thought
responsible  for the shows cancellation in Juneau.  A  reasonable
jury  could  permissibly  find that his call-to-arms  words  were
extreme  and  outrageous within the meaning  of  the  instruction
defining  extreme  and  outrageous  conduct,  because  it   could
permissibly  find  that  he  intended  those  words  to   provoke
          listeners to harass her.  We also note that his words were devoid
of  any  express or implicit message that a jury  might  deem  an
attempt  to  persuade Carpenter, except perhaps out  of  fear  of
harassment, to withdraw her objections to broadcasting  the  show
in Juneau.
          We  are unconvinced that submitting an IIED claim to  a
jury  in  such  a case  will unduly chill protected  speech.   To
recover for intentional infliction of emotional distress, an IIED
claimant must prove that there was extreme and outrageous conduct
that  intentionally  or  recklessly  inflicted  severe  emotional
distress.48  As the jury was instructed here, conduct gives  rise
to an IIED claim only if it is so outrageous in character, and so
extreme  in  degree,  as  to go beyond  all  possible  bounds  of
decency,  and to be regarded as atrocious and utterly intolerable
in  a  civilized community.49  Therefore, as the  jury  was  also
instructed, mere insults, indignities, threats, annoyances, petty
oppressions  or other trivialities cannot form the  basis  of  an
IIED  claim.50   We  have  previously noted,  and  the  jury  was
instructed  here,  that  even harmful  conduct  characterized  by
malice   is insufficient to make out an IIED claim if the conduct
is  not  extreme  and outrageous.51  An IIED claim  is  therefore
arguably  no  easier  to prove than a defamation  claim,  even  a
defamation  claim  that must satisfy the actual malice  standard.
In  addition,  because IIED requires proof of an  intentional  or
reckless  mental  state, an IIED plaintiff  must  show  that  the
defendant  acted  in deliberate disregard of  a  high  degree  of
probability that the emotional distress will follow.52
          IIED  claims  must  also satisfy other  hurdles  beyond
those  applicable to defamation claims.  Injury is presumed  from
the fact of publication under defamation law.53  In comparison, an
IIED  plaintiff  must  prove that she suffered  severe  emotional
distress,54 i.e., distress of such substantial quality or enduring
quantity that no reasonable person in a civilized society  should
be  expected to endure it.55  The requirements for an IIED  claim
are therefore inherently protective of most conduct; liability is
allowed  only if intentional or reckless conduct is  extreme  and
outrageous  and  causes  severe  emotional  distress.    Claiming
intentional infliction of emotional distress is consequently  not
a   functional   means  of  circumventing  the  restrictions   on
defamation  claims.56  This is particularly so since  those  IIED
claims  that  are mere clones of defamation claims  because  both
turn on the words falsity  will have to satisfy the actual malice
standard  if  the  plaintiff is a public  figure  or  the  speech
concerns a matter of public interest.57
          Finally,  we  are also confident that our trial  courts
can  craft instructions that tell juries considering IIED  claims
how  to  distinguish between speech that can permissibly  be  the
basis   for  finding  outrageous  conduct  and  speech  that   is
protected.   Even  speech that relates  to  a  matter  of  public
interest loses its protection and can give rise to an IIED  claim
if,  in  addition to meeting the other requirements for  an  IIED
claim, it is uttered with an intent merely to harass and with  no
intent to persuade, inform, or communicate.
          So  far, we have focused on state law.  Because  Leykis
          claims Carpenter is a limited purpose public figure under federal
law,  we  must consider whether permitting the IIED claim  to  go
forward  may be contrary to the First Amendment.58  We  therefore
consider  whether the limitations applicable to  Carpenters  IIED
claim satisfy federal law.
          The  dissent  characterizes Leykiss speech  as  opinion
statements.   Dissent  at 74.  Certainly some  of  Leykiss  words
purporting to describe Carpenter consisted of opinion statements.
As  we  have  recognized, those words cannot  be  the  basis  for
defamation  or  IIED  claims.  But the dissents  characterization
fails to recognize that jurors might fairly find that other words
Leykis  spoke  or  allowed to be broadcast  were  not  statements
expressing  opinions,  but statements  intended  to  harass.   As
discussed  above, the heightened intent we require here  prevents
the  IIED  claim  from  chilling  protected  speech,  because  we
distinguish  unprotected speech  from speech expressing  opinions
or  addressing  matters of public concern.  Even if the two types
of speech are uttered contemporaneously, permitting a claim as to
the  unprotected  speech  will not  chill  protected  speech.   A
speaker is not privileged to speak with an intent to harass  even
if she has just commented on important public issues.
          Is   harassing  speech  of  the  kind  described  above
unprotected  under federal law?  Four kinds of speech  have  been
recognized to date by the United States Supreme Court  as  wholly
unprotected:  obscenity,59 fighting words,60 true threats,61  and
words that create a clear and present danger62 of imminent lawless
action.63  Defamatory falsehood is also unprotected as to private
figures, and is only protected as to public figures absent actual
malice.64  Leykiss comments do not fit into any of the first four
categories,  nor  are they actionable as defamatory.   But  these
five  categories  are  useful guideposts  to  mark  the  boundary
between  words  that  comprise protected speech  and  words  that
comprise  unprotected  speech.  With the  possible  exception  of
obscenity,  words  falling into one of the  five  categories  are
arguably  unprotected  speech not because  of  their  informative
content,  but  because  they  do  more  than  merely  disseminate
information.  They instead have an operative effect that would be
actionable, and in some cases criminally punishable, whether that
effect was accomplished by word or deed.
          Thus,  uttering fighting words has the same  impact  as
striking the first blow in an affray; uttering true threats is  a
form  of assault that is purely verbal; and creating a clear  and
present  danger of imminent lawless action is the verbal form  of
starting  a riot or insurrection.  Defamation requires damage  to
anothers reputation, a legally protected interest.65  The tort of
IIED  protects  ones interest in her physical  and  psychological
integrity, a different legally protected interest.66
          The United States Supreme Court dealt with the issue of
harassment  when  it  upheld  an  ordinance  banning  residential
picketing.67  In that case and several others, the Court expressed
a  special  solicitude for the home, holding that [o]ne important
aspect  of  residential privacy is protection  of  the  unwilling
listener.   Although  in  many locations, we  expect  individuals
simply  to  avoid  speech they do not want  to  hear,  [citations
          omitted] the home is different.68  The Court concluded, [t]here
simply  is no right to force speech into the home of an unwilling
listener.69  Here, Carpenter claimed that her home telephone  and
fax numbers were disseminated.70
          Decisions of the federal courts of appeals have held or
recognized  that telephonic harassment  whether effected  by  the
conduct of making a telephone call with the intent to harass  and
hanging  up or saying nothing, or by speaking to the victim   may
be criminally punished.71  These opinions suggest that a law must
cover   both   harassing   speech  and   conduct   to   withstand
constitutional  scrutiny.  The tort of IIED clearly  pertains  to
both  speech and conduct, and our ruling is consistent  with  the
D.C. Circuits statement  in United States v. Popa, that harassing
speech  made  with  no  intent to contribute  to  the  public  or
political discourse may be criminally punished.72
          We   therefore  conclude  that  our  holding  here   is
consistent with current First Amendment precedent.
          4.   Effect of Instruction No. 17
          Instruction No. 18 properly instructed the jury on  the
elements  of  an IIED claim.  But the jury was not informed  that
Instruction No. 17 did not apply to Carpenters claim that Leykiss
conduct was outrageous, or that in considering the IIED claim the
jury  might  or should distinguish between his merely  derogatory
words  about Carpenter and his words that arguably were  intended
to  invite  harassment.  In essence Leykis argued that everything
he  said  was protected speech, and that Special Interrogatory  1
used  speech as a synonym for conduct or acts intended to provoke
a  hostile  reaction.  Special Interrogatory 1 similarly  treated
the  claim  of  provoking a hostile reaction  as  falling  within
paragraph  (1)   (the hostile reaction exception) of  Instruction
No. 17.  Special Interrogatory 2 likewise equated the conduct  of
disclosing  private factual information with the other exception,
contained  in paragraph (2) of Jury Instruction No. 17.   Because
the IIED claim arose out of words that Leykis spoke or allowed to
be  spoken  on the air and because those words were to  or  about
Carpenter, the jury was unable to consider the IIED claim without
applying Instruction No. 17.
          Leykis  argues that Instruction No. 17 correctly stated
the law and did not prejudice the jurys consideration of the IIED
claim.   We  are  unconvinced that the jury must have  understood
that  Instruction No. 17 did not apply to the IIED claim.   Given
the  breadth  of  Instruction No. 17, it  is  probable  the  jury
thought it did apply to that claim.
          We  are also unconvinced that Carpenter, to prevail  on
her  IIED claim, should have been required to prove that  Leykiss
speech fell under one of the two categories of unprotected speech
described  in  Instruction No. 17.  Instruction No.  17s  hostile
reaction exception restates the classic fighting words exception.73
But conduct consisting of speech can be found to be outrageous if
a  jury finds that the speaker intended to harass by provoking  a
widespread audience to react with hostility toward the target  of
humiliating  and  demeaning comments.  A  jury  could  reasonably
determine  that Leykis encouraged his listeners to be angry  with
Carpenter and to contact her and harass her.  There is no  reason
          why an IIED plaintiff under such circumstances must prove that
there  is  in  fact  a  clear  and present  danger  of  immediate
violence;  so long as Leykis acted with the requisite  intent  to
harass,  it  is enough that a reasonable person could think  that
his  comments  were  likely to prompt  listeners  to  contact  or
communicate   with   Carpenter  in  a   hostile   fashion,   thus
accomplishing  his  objective.  In short,  the  hostile  reaction
exception did not accurately describe Carpenters IIED claim,  and
made  it  more difficult for her to prevail on that  claim.   The
instructions   exception  for  publication  of  private   factual
information  was  equally inapplicable, and  equally  potentially
prejudicial.
          There  is no basis for thinking the verdict would  have
been  the  same if it had been clear to the jury that  Carpenters
IIED  claim  only had to satisfy Instruction No. 18 and  did  not
also have to satisfy Instruction No. 17, at least as to that part
of  the  IIED claim based on broadcasting the call to arms.   The
evidence  fairly  described in a manner favoring Carpenter  would
have permitted reasonable jurors to find that Leykiss conduct was
extreme and outrageous.  In allowing the IIED issue to go to  the
jury,  the trial court apparently assessed the evidence the  same
way, even though the trial court had post-trial qualms about  the
claim.
         Furthermore, as Carpenter argues, the jurys  answers  to
the  special verdict form may imply that Instruction No.  17  and
Special  Interrogatory 1 actually affected the IIED verdict.   In
answering Special Verdict Form Question (11), the jury  found  by
clear and convincing evidence that Leykiss conduct was outrageous
and  thus  subject  to  an  award of punitive  damages.   But  in
answering Special Verdict Form Question (10) the jury found  that
Leykis  had no responsibility for the spoliation of the  July  24
tape.   Taken together, these answers may indicate that the  jury
found  that Leykiss on-air conduct was outrageous.  This in  turn
may  indicate that the jury rejected Carpenters IIED  claim  only
because  his  conduct  did  not satisfy  the  immediate  violence
element  that  was  discussed in Instruction  No.  17,  expressly
required  by  Special Interrogatory 1, and impliedly required  by
Special Verdict Form Question (1).
          We  therefore hold that Instruction No. 17  potentially
prevented  the jury from giving fair consideration to  Carpenters
IIED  claim.   Remand  for  a new trial  on  the  IIED  claim  is
consequently  necessary.   The jury  on  remand  should  consider
whether  Leykiss  conduct, when viewed in its entirety:  (1)  was
extreme and outrageous, (2) was intentional or reckless, and  (3)
caused [Carpenter] severe emotional distress.74
          5.   Instructions on Remand
          Conduct   in   broadcasting  the  call  to   arms   and
encouraging listeners to take harassing action against  Carpenter
was not protected speech and may be the basis for IIED liability.
Nonetheless,  some  of Leykiss comments about Carpenter  and  her
actions  in trying to have his show taken off the air  in  Juneau
cannot  be  the  sole basis for her IIED claim.   There  are  two
reasons why:  First, the derogatory comments are entitled to some
speech  protections  because debate about  whether  a  nationally
          broadcast radio show should no longer be aired in Juneau is
potentially  a matter of public importance in Alaska.   Offensive
as the derogatory comments about Carpenter would be to persons of
normal sensibilities, they arguably challenge the credibility  of
the  person  Leykis  identified  as  being  responsible  for  the
cancellation.  They attacked the wisdom and need for cancellation
by  attacking  that  person and her values.   Under  Alaska  law,
therefore,  they  addressed a matter of public interest  and  are
qualifiedly privileged.75  They consequently cannot themselves be
the  sole  basis  for  her IIED claim unless  Leykis  abused  the
privilege.76   Second,  to the extent the derogatory  words  were
arguably  germane to the shows cancellation, a  topic  of  public
interest, speaking them cannot be considered outrageous conduct.
          But the derogatory comments remain potentially relevant
to  Carpenters IIED claim.  As to that claim, the jury on  remand
may  consider how Leykiss derogatory comments bore on whether  it
was  extreme  and  outrageous to encourage listeners  to  contact
Carpenter  or  harass  her.  It might  think  his  comments  were
intended to incite listeners to act on his arguable invitation to
take   harassing   action   against   her   and   increased   the
foreseeability and likelihood that some would do  so.   In  this,
the  comments bear on whether Leykis acted with the mental  state
required  for  an  IIED claim.  Finally, the words  may  also  be
relevant  to  the  question  whether  Carpenter  suffered  severe
emotional distress.
          Instructions  on  remand should  therefore  distinguish
between  those aspects of the July 24 broadcast that may  not  be
the  basis for an IIED claim and those that may.  We will not try
to  draw  that  distinction here.  It is fact-intensive  and  the
trial court is in the best position to assess the words probative
value  and  the  potential  for undue prejudice.   Moreover,  the
parties  have  not  really tried to distinguish between  comments
that  might  legitimately  be the basis  for  finding  outrageous
conduct,  comments that may not themselves be the  basis  for  an
IIED claim but may nonetheless be relevant to that claim, and any
comments that the jury cannot be allowed to consider on the issue
of  IIED  liability.   We recognize the potential  difficulty  of
drawing the line accurately.  But we are also confidant the trial
court will be able to make clear to the jury on remand the extent
to which it may or may not consider such comments in deciding the
IIED claim.77
     D.   The  Superior  Courts  Refusal To Admit  into  Evidence
          Carpenters   Compendium  of  Broadcast   Excerpts   and
          Evidence  of  Leykiss  Salary  Was  Not  an  Abuse   of
          Discretion.
          
          Carpenter  argues  that  the  trial  court  abused  its
discretion  in  refusing  to  admit  into  evidence  a   one-hour
compendium  of excerpts from broadcasts of Leykiss  show  between
May  2000 and August 2001.  All of the excerpts in the compendium
were  from  shows  broadcast after the July 24, 1998  program  at
issue.   The  compendium  consists of segments  from  twenty-four
taped broadcasts.
          Carpenter  contends that the exhibit  established  that
          Leykis intentionally and routinely denigrated and attacked women.
She asserts that the compendium demonstrates that Leykis intended
to   inflict  emotional  distress  on  Carpenter  and   that   he
intentionally disseminated Carpenters personal information.   She
argues that the broadcasts establish Leykiss intent to injure her
by revealing his antipathy toward women and, by extension, her.
          The trial court refused to admit the entire compendium.
It  ruled  that while the compendium might tend to  show  Leykiss
attitudes  toward  women, its prejudicial effect  outweighed  its
probative value.
          We  review evidentiary rulings for abuse of discretion,
although  whether  the  trial court  applied  the  correct  legal
standard presents a question of law that we review de novo.78
          Alaska  Rule  of  Evidence  403  permits  exclusion  of
relevant  evidence  if its probative value is outweighed  by  the
danger of unfair prejudice.  Evidence that Leykis hated women may
lend  support  to  Carpenters claim that Leykis intentionally  or
recklessly  caused  her  to suffer emotional  distress,  but  its
probative value is slight.  The prejudicial effect, on the  other
hand, is potentially great.  As the trial court pointed out,  the
compendium included distasteful and offensive remarks  that  were
likely to prejudice the jury against Leykis, particularly because
it  was  composed  of snippets (as the trial court  characterized
them) taken out of context.  The court did not preclude Carpenter
from  playing particular passages to impeach Leykis if he  denied
ever  having  said particular things or ever having  acted  in  a
particular  fashion  while broadcasting.  We  conclude  that  the
trial court did not abuse its discretion in denying admission  of
the entire compendium.
          Carpenter also argues that the trial courts refusal  to
allow cross-examination of Leykis on the terms and amount of  his
annual  compensation  as  host  of  the  show  was  an  abuse  of
discretion.   The  trial  court  granted  Leykiss  motion  for  a
protective  order because the evidence was not  relevant  to  the
core issues of the case:
          At  best,  the fact that Mr. Leykis  receives
          compensation for his work is relevant to show
          that  he wants to go on making a salary.   In
          contrast,  the Leykis compensation  could  be
          misused  or misunderstood by the  jury  as  a
          potential  yardstick for  damages.   In  this
          particular case, there is already  risk  that
          the  jury  could  impose liability  based  on
          their  dislike of the content  of  the  radio
          show in general as opposed to determining the
          narrow   liability  issues  presented.    The
          probative value of this salary information is
          outweighed   by  the  potential   for   undue
          prejudice.
          
Carpenter  has not persuaded us that the trial court  abused  its
discretion in granting the protective order.
     E.   The Superior Court Did Not Err in Denying Westwood Ones
          Motion  for  a  Directed Verdict on the  Spoliation  of
     Evidence Claim.
          
          The  jury  found  that Westwood One  (but  not  Leykis)
committed  the  tort of spoliation of evidence by destroying  the
tape  of  the  show and awarded Carpenter $5,042 in  compensatory
damages  and  $150,000 in punitive damages against Westwood  One.
The  act  of   [s]poliation is the destruction or  alteration  of
evidence,79  or its intentional concealment . .  .  until  it  is
destroyed by natural causes.80  Although this court has not  laid
out the exact elements of the spoliation tort, it is clear that a
viable  underlying  cause of action must accompany  a  spoliation
claim,81  that a plaintiff must show that the spoliation occurred
with  the  intent  to disrupt [the plaintiffs] prospective  civil
action,82  and  that  the  spoliation must  have  prejudiced  the
prosecution of the action.83  Westwood One argues that it  should
have  received a directed verdict on the spoliation claim because
there  was no viable underlying cause of action and because there
was insufficient evidence of intent.
          In  reviewing  a trial courts denial of  a  motion  for
directed verdict, we determine whether the evidence, when  viewed
in the light most favorable to the non-moving party, is such that
reasonable persons could not differ in their judgment as  to  the
facts.84    If  there  is  room for diversity  of  opinion  among
reasonable people, the question is one for the jury. 85
               1.   The IIED claim was viable.

          An  action based on the tort of spoliation is meritless
unless  it can be shown that a partys underlying cause of  action
has been prejudiced by the spoliation. . . .  Therefore, in order
for  [a  plaintiff] to prevail on [her] spoliation  claim,  [her]
underlying cause of action . . .  must be viable.86  We have  not
articulated  what  is  required for  a  cause  of  action  to  be
considered viable in this context.  Only once have we encountered
the viability element of the claim, in Estate of Day v. Willis.87
We  there  determined that the underlying claim  was  not  viable
because  it  relied on a duty that we concluded did not  exist.88
Because  a  jury  could  reasonably  find  that  the  uncontested
evidence  of Leykiss conduct satisfies the elements  of  an  IIED
claim, that claim was viable.
          Carpenters intentional infliction of emotional distress
claim had three elements.  She was required to prove that Leykiss
broadcast (1) was extreme and outrageous, (2) was intentional  or
reckless, and (3) caused [Carpenter] severe emotional distress.89
Westwood  One challenges only the first element.  Leykiss  action
was  sufficiently outrageous to make out an IIED claim if it  was
so  outrageous in character, and so extreme in degree, as  to  go
beyond  all  possible bounds of decency, and to  be  regarded  as
atrocious,  and  utterly intolerable in a civilized  community.90
Although  mere  insults, indignities, threats, annoyances,  petty
oppressions, or other trivialities cannot be the basis of an IIED
claim,91  a  properly  instructed jury could  find  that  Leykiss
conduct discussed above in Part III.C was sufficiently outrageous
for  IIED  liability.  Similarly, a jury could find that  it  was
foreseeable that a citizen, allegedly targeted and humiliated  by
          Leykis on national radio before admiring listeners who seemed
predictably  inflamed  by his comments,  would  suffer  emotional
distress   upon  realizing  that  Leykis   had  probably   caused
thousands of strangers to loathe her and that some of them  might
act on his seeming invitation to harass and confront her.
          2.   There  was  sufficient evidence of  Westwood  Ones
               intent to disrupt Carpenters claim.
               
          A  reasonable jury could find that Westwood One spoiled
the  tape with the intent to disrupt the underlying litigation.92
Attorney  Jim  Douglass letter to KJNO and Westwood One  informed
the  company of the potential for legal action.  Westwood One was
thereafter on notice of the potential claim.93  If credited, there
was  testimony that implied that the tape was handed over to  the
legal  department.   The evidence could therefore  establish  the
requisite intent.94  It was not error to submit the claim to  the
jury.
     F.   The Punitive Damages Award for the Spoliation Claim Was
          Not Excessive.
          
          Westwood  One challenges the $150,000 punitive  damages
award,  claiming it is grossly excessive.  We review de novo  the
question  of  whether punitive damages are grossly excessive  and
thus  unconstitutional  under  the  due  process  clause  of  the
Fourteenth Amendment.95
          Westwood One argues that the award is outside the vague
boundaries set out by the United States Supreme Court in  BMW  of
North  America,  Inc. v. Gore96 and State Farm Mutual  Automobile
Insurance  Co.  v. Campbell.97  These cases hold that  a  grossly
excessive punitive damages award violates the Due Process Clause.98
Gore  provides three guideposts for determining when an award  is
unconstitutional:  (1)  the  degree of  reprehensibility  of  the
tortious conduct; (2) the disparity between the harm or potential
harm  suffered  by  [the  plaintiff] and [the]  punitive  damages
award;  and  (3)  the  difference between [the  punitive  damages
award]   and  the  civil  penalties  authorized  or  imposed   in
comparable cases.99
          We  do not find that the first factor  reprehensibility
is  met.100   The next factor is the ratio between  the  punitive
damages  award  and  the  harm caused  by  the  tortious  conduct
(generally measured by the compensatory damages awarded).   While
the  Supreme Court is reluctant to actually draw a line,  it  has
said  that  a  ratio  of  four to one is close  to  the  line  of
constitutionality.101   The  ratio  between  Carpenters  punitive
damages award of $150,000 and her compensatory award of $5,042 is
nearly thirty to one, off the allowable scale.  Nonetheless,  the
relatively low compensable damages on the spoliation claim  would
potentially justify a high ratio.
          The third factor is the difference between the punitive
damages  award and the civil penalties authorized or  imposed  in
comparable cases.  Carpenter argues that a comparison between the
punitive  damages  award and the criminal  penalty  for  evidence
tampering under AS 11.56.610(a)(1) supports the constitutionality
of  the  award.  While Westwood One correctly points out that  it
          probably could not have been convicted of tampering on such
limited evidence of intent, the Supreme Courts comparison between
punitive  damages and statutory penalties has not depended  on  a
finding that the exact conduct subject to punitive damages  would
be  subject  to the other penalties.  Instead, the Supreme  Court
has  considered  the  penalties imposed in  comparable  cases.102
Similarly, the Supreme Court in Pacific Mutual Life Insurance Co.
v.  Haslip looked to the fines that could be levied for insurance
fraud  in  general,  without considering whether  the  defendants
particular  conduct would warrant such a fine.103   Thus,  it  is
appropriate  to  consider the fines for evidence tampering.   The
fines  can  be  as much as $1,000,000, a figure  well  above  the
punitive damages award here.104  This factor therefore weighs  in
favor of the constitutionality of the award.
          Finally, we note that punitive damages may sometimes be
the   only   appropriate  damages  recoverable  for   spoliation,
especially  when the jury finds no liability for  the  underlying
claims.   It  is difficult to see how spoliation can  cause  harm
other  than  by  denying the plaintiff the opportunity  to  fully
prosecute  the  underlying claims.  Compensatory  damages  cannot
reflect much besides speculation as to how the underlying  claims
would  have  turned  out if the evidence had  not  been  spoiled.
Punitive  damages,  providing  retribution  and  deterrence,  are
particularly  appropriate for this tort.105  We hold,  therefore,
that  the punitive damages award for Carpenters spoliation  claim
was not excessive.
          On   remand,  Carpenters  IIED  claim  may  provide  an
independent  ground  for a punitive damages claim.   If  punitive
damages  are sought on retrial of that claim, any award must  not
result  in double recovery, i.e., must not twice punish the  same
defendant for the same conduct.
     G.   Alaska Statute 09.17.020(j) Is Constitutional.
          Carpenter  appeals the superior courts  denial  of  her
motion   seeking   a   declaration  that   AS   09.17.020(j)   is
unconstitutional.  Alaska Statute 09.17.020(j) provides:
          If  a  person  receives an award of  punitive
          damages,  the  court shall  require  that  50
          percent  of the award be deposited  into  the
          general  fund of the state.  This  subsection
          does not grant the state the right to file or
          join  a  civil  action  to  recover  punitive
          damages.
          
          We review the issue de novo.106
          Carpenter  challenges  the  constitutionality   of   AS
09.10.020(j) on two grounds.  First, she argues that it  violates
the  separation  of  powers doctrine.   She  theorizes  that  the
legislature  exceeds  the  power  granted  it  under  the  Alaska
Constitution  when it compels a judge to issue  a  judgment  that
contradicts  a  reasonable jury verdict.   She  argues  that  the
content  of  a  final judgment is the exclusive  concern  of  the
courts.
          We  addressed a similar issue in Evans ex rel. Kutch v.
State,  in  which we held that the statutory caps on  noneconomic
          and punitive damages did not amount to a remittitur that violated
the separation of powers doctrine.107  Although the dispositional
opinions  separation  of  powers analysis  did  not  discuss  the
validity of the allocation statute, we adopt that analysis  today
in  rejecting  Carpenters separation of powers  challenge  to  AS
09.10.020(j).  In Evans, the dispositional opinion reasoned  that
because they applied generally to all cases and were not case- or
fact-specific, the damage caps did not amount to a remittitur.108
The   dispositional  opinion  concluded  that  the  damages  caps
therefore  did not violate the separation of powers,  and  stated
that the power of the legislature to modify or abolish the common
law  necessarily includes the power to set reasonable  limits  on
recoverable  damages in causes of action the legislature  chooses
to recognize. 109
          Likewise,  it  is  within  the  legislatures  power  to
mandate  the  award of a portion of the punitive damages  to  the
state.   Just as the legislature may require the trial  court  to
cap  the  jurys  damages  awards, it may  require  the  court  to
allocate half of the punitive damages award to the state.
          Carpenter  next argues that AS 09.10.020(j) results  in
an unconstitutional taking.110  We rejected an identical argument
in  Reust v. Alaska Petroleum Contractors, Inc.111  We there held
that an unlitigated claim does not become property until after it
accrues.112  Because claims are defined by the law that exists when
they  accrue,  any  claim  accruing  after  the  August  7,  1997
effective date of AS 09.17.020(j) may constitutionally be limited
by  the terms of the statute; here, the claim is limited to  one-
half  of any punitive damages award.113  We stated in Reust  that
parties  whose  claims accrued after the effective  date  of  the
allocation  statute  cannot  have  a  reasonable  expectation  of
receiving more than half of their punitive damages award.114
          Carpenters  claim accrued on July 24,  1998,  nearly  a
year after AS 09.17.020(j) became effective.  Her claim that  the
statute works an unconstitutional taking therefore fails.
     H.   Pro  Rata  Attorneys Fees Should Be Deducted  from  the
          States  Fifty  Percent  Share of the  Punitive  Damages
          Award.
          
          Carpenters contingent fee agreement required her to pay
forty percent of her punitive damages award to her attorney.  The
state argues that it was error for the superior court to deduct a
pro  rata share of Carpenters contingent fee from its portion  of
the  punitive damages award.  The state argues that the  language
and  legislative  history  of AS 09.17.020(j)  and  AS  09.60.080
support its position.115  Alaska Statute 09.60.080 provides:
          If  an  attorney contracts for or collects  a
          contingency fee in connection with an  action
          for   personal  injury,  death,  or  property
          damage and the damages awarded by a court  or
          jury  include  an award of punitive  damages,
          the contingent fee due the attorney shall  be
          calculated  before that portion  of  punitive
          damages   due   to   the   state   under   AS
          09.17.020(j) has been deducted from the total
          award of damages.
          
          The  state raises arguments similar to those it  raised
in  Anderson  II.   In that case, we unanimously  held  that  the
statute  requires  that the superior court deduct  pro  rata  the
contingent  fee  from the states portion of the punitive  damages
award.116  Although section .080 only directly addresses how fees
are to be calculated, we construed the language of the section to
impl[y]  that half of the calculated fee should be deducted  from
the portion of damages due the state.117  We explained:
          Section  .080 clearly is concerned with  when
          the  calculation  of fees  takes  place,  yet
          timing  of  the  calculation  is  unimportant
          unless   a  deduction  is  meant  to   occur.
          Otherwise calculation of fees would  be  just
          as  appropriate after the states portion  was
          deducted,  so long as it was clear  that  the
          fees  should be based on the entirety of  the
          award.   Further, if section .080 means  that
          no  deduction for fees can be taken from  the
          states  share, its purpose would be to ensure
          full  compensation  of  plaintiffs  attorneys
          while  imposing  a  double  burden  on  their
          clients.    This  seems  like   an   unlikely
          objective.[118]
          
          We  determined  that  the statutes legislative  history
supported our interpretation.119  An early version of the bill that
became  the  Tort Reform Act of 1997 provided that the contingent
fee  due  the attorney shall be calculated after that portion  of
punitive  damages due the state under [AS 09.17.020(j)] has  been
deducted from the total award of damages.120 We concluded that  a
later  amendment that changed the word after to before was  meant
to  require the state to pay its share of a plaintiffs  attorneys
contingent fee.121
          The state also argues that the House of Representatives
rejection  of  a  proposed amendment that  would  have  allocated
punitive damages to the state only after payment of all costs and
fees  incurred in obtaining the award supports its position.   It
points to House Majority Leader Brian Porters statement that  the
amendment was determined to be unacceptable in the main,  because
[its] punitive damages section . . . removed the disincentive  to
settle found in returning a full 50% of these fines to the state.122
We addressed that argument in Anderson II, explaining that it was
more  likely that the reference to  a full fifty percent of these
fines  .  .  . is to the fact that under the amendment the  state
would  only  receive a graduated percentage of  punitive  damages
awards,  up to forty percent for awards greater than $10 million,
rather than fifty percent of any punitive damages award no matter
what its size.123  Because Anderson II squarely resolved the issue,
we  conclude  that the superior court did not err by deducting  a
pro  rata  share  of Carpenters contingent fee  from  the  states
portion of Carpenters punitive damages award.
     I.   Pro  Rata  Costs  Incurred in  Obtaining  the  Punitive
     Damages  Award  Should  Be Deducted from  the  States  Fifty
          Percent Share.
          
          The  superior court declined to deduct a pro rata share
of  Carpenters  costs  from the states portion  of  her  punitive
damages  award.  Carpenter argues that the phrase contingent  fee
as  used in AS 09.60.080 includes costs and expenses.  The  state
challenges Carpenters interpretation of the statute, pointing  to
a  rejected  amendment package to the bill that became  the  Tort
Reform Act of 1997.  The amendment explicitly required payment of
both costs and fees before calculation of the states share of the
award.   It provided: All amounts to State, after payment of  all
costs and fees incurred in connection with securing the award.124
The  state argues that the deletion of any reference to costs  in
the final version of the bill implies that only fees are deducted
from  the  states share.125  As Anderson II noted,  however,  the
amendment package covered many subjects,126  precluding  us  from
inferring that the deletion indicates a legislative intention  to
prevent  pro rata deduction of costs from the states  portion  of
punitive damages.
          Because  the statutory language is ambiguous, we  apply
equitable considerations to determine whether to apply a pro rata
deduction of costs to the states share of the award.127   If  the
state is not required to pay its pro rata share of the litigation
costs, it effectively receives the windfall of a judgment in  its
favor  without incurring any costs.  In order to ensure that  the
state  is  not unjustly enriched at the expense of litigants,  we
read  AS 09.60.080 to require a pro rata deduction of costs  from
the states share of the punitive damages award.
          The  superior  court  found  that  it  was  unable   to
differentiate  between  Carpenters  costs  attributable  to   her
punitive  damages  award  and those  costs  associated  with  her
unsuccessful claims.  If Carpenter prevails on her IIED claim  on
remand  and additional punitive damages are awarded, the superior
court may find it easier to make that determination.  If not, the
court  should  apply  to  Carpenters total  costs  application  a
straight  ratio of Carpenters compensatory damages award  to  her
punitive damages award.
     J.   Whether  the  Superior Court Abused Its  Discretion  in
          Refusing To Deem Leykis a Prevailing Party Is  Not  Yet
          Determinable.
          
          Under   Alaska  Rule  of  Civil  Procedure   82(a),   a
prevailing  party shall be awarded attorneys fees.  The  superior
court  ordered  the  parties to bear their own  costs  and  fees.
Leykis appeals this order, arguing that because he was not  found
liable  for  any  claim,  he was a prevailing  party  and  should
receive  a  fee award.  We need not decide this issue now,  given
the  possibility  Leykis  will be  found  liable  on  remand  for
intentional  infliction of emotional distress.  If  he  is  found
liable,  he will not be a prevailing party.  If he is  not  found
liable, the trial court should award attorneys fees to Leykis  if
it  can  distinguish the fees incurred in defending  Leykis  from
those incurred in defending Westwood One.
IV.  CONCLUSION
          For  these  reasons,  we AFFIRM the  grant  of  summary
judgment   dismissing  Carpenters  defamation  and  false   light
invasion  of  privacy  claims.  We also  AFFIRM  the  evidentiary
rulings  and  the ruling on Carpenters proposed Jury  Instruction
No.  15.   We REMAND Carpenters IIED claim for a new  trial.   On
remand,  the jury must be instructed to consider whether  Leykiss
statements, when examined in their entirety, satisfy the elements
of an IIED claim.  The trial court should give other instructions
to  inform  the  jury  how  to distinguish  between  speech-based
conduct  that  could be found to be sufficiently  outrageous  for
IIED  liability,  and speech that is qualifiedly  privileged  but
that might also be relevant to the IIED claim.
          We  AFFIRM the denial of Leykiss motion for a  directed
verdict  on  Carpenters spoliation claim.   We  also  AFFIRM  the
constitutionality  of  both the punitive  damages  award  and  AS
09.17.020(j),  and AFFIRM the deduction of a pro  rata  share  of
Carpenters attorneys fees from the states portion of the punitive
damages award, but REMAND for a pro rata reduction of costs  from
the states portion of the award.
Carpeneti, J., concurring.
          In  arguing that the jury was misinstructed on her IIED
claim,  Karen  Carpenter  argues  that  Instruction  No.  17  was
erroneous  because  the  superior court mistakenly  assumed  that
Carpenter  was a public figure.  I agree, and would resolve  this
issue on that basis.
          Whether   Instruction No. 17 was erroneous  depends  on
whether  Carpenter  was  a public figure.   Relying  in  part  on
Hustler  Magazine, Inc. v. Falwell,1 the trial  court  instructed
the  jury  to  disregard statements of opinion and to  apply  the
standard of liability applied to a defamation claim brought by  a
public figure.  But if Carpenter is not a public figure, Falwell,
which applied defamation standards to an IIED claim brought by  a
public figure, does not control Carpenters IIED claim.2
          The Supreme Court has identified two bases on which  to
ground public figure status:
          In  some  instances an individual may achieve
          such  pervasive  fame or  notoriety  that  he
          becomes a public figure for all purposes  and
          in   all   contexts.    More   commonly,   an
          individual voluntarily injects himself or  is
          drawn  into  a particular public  controversy
          and  thereby  becomes a public figure  for  a
          limited range of issues.[3]
          A  person in this second category is often referred  to
as  a  limited-purpose  public figure.4  To  find  public  figure
status  on  this basis, a court must conduct a two-part  inquiry:
first, whether there is a public controversy; and second, whether
the  nature  and  extent  of  the persons  participation  in  the
controversy  were sufficient to make him or her a  public  figure
within  that  controversy.5   The  superior  court,  pointing  to
Carpenters   contacts   with  government   officials   and   KJNO
advertisers, reasoned that Carpenter fit within [the]  definition
of  limited public figure, at least to the extent of her  efforts
to  remove  the Tom Leykis Show from the air.  The  dissent  also
takes  this  approach.  Although the topic of  whether  the  show
should   be  canceled  in  Juneau  arguably  generated  a  public
controversy,6 I do not believe that Carpenters participation  was
sufficient to confer limited-purpose public figure status on her.
          Based on its analysis of the Supreme Courts precedents,
the  United  States Court of Appeals for the Second  Circuit  has
adopted  the following test to determine whether a defendant  has
established that a plaintiff is a limited-purpose public figure:
          A  defendant must show the plaintiff has: (1)
          successfully invited public attention to  his
          views  in an effort to influence others prior
          to  the  incident  that  is  the  subject  of
          litigation; (2) voluntarily injected  himself
          into  a  public  controversy related  to  the
          subject  of  the litigation;  (3)  assumed  a
          position   of   prominence  in   the   public
          controversy; and (4) maintained  regular  and
          continuing access to the media.[7]
          
I  believe  that this test appropriately states what a  defendant
must  prove,  and that it accurately reflects the Supreme  Courts
analysis in this area.  I would adopt it here.
          I  assume  that Carpenter voluntarily injected  herself
into  the  topic of whether the show should be aired  in  Juneau,
although  there is little evidence that this question was  public
before  July  24.  KJNO had already received some complaints  and
some  advertisers had already cancelled, but its manager regarded
the stations decision whether to stop broadcasting the show as  a
private thing.
          Therefore,  I  have  doubts that  there  was  a  public
controversy.  Assuming, however, that Leykis satisfied the second
element,  inquiry on whether Leykis established  that  Carpenters
conduct  satisfied  the tests first, third, and  fourth  elements
leads to the conclusion that she was not a public figure.
          Carpenter  testified that after hearing the Tom  Leykis
Show  for  the first time on July 20, she discussed  the  program
with  about five friends and associates.  She contacted  a  woman
named  Lorene Kappler who was trying to get the Tom  Leykis  show
taken  off the air and asked Kappler what she could do  to  help.
Kappler  said she would send a letter to KJNO and asked Carpenter
to do so as well.  They also discussed several other ideas during
what   Kappler   estimated   to   be   a   half-dozen   telephone
conversations.  Carpenter never actually met Kappler.
          The  next  day,  July 21, Carpenter left  messages  for
three  City and Borough of Juneau assembly members.  Two  members
never  returned  her  calls;  she actually  spoke  to  only  one.
Carpenter  related her concerns to that member, inquired  whether
Juneau had any decency ordinances, and asked for advice on how to
handle the situation.  That member checked with the city attorney
and   then   informed  Carpenter  that  Juneau  had  no   decency
ordinances;  she  suggested  that  Carpenter  contact  the  radio
stations advertisers.
          Carpenter also called the governors office on July  21,
but  testified  that she wasnt specific about what  [she]  wanted
when  [she] called them.  She recalled that she was simply trying
to  see  if  there were any decency laws regarding  broadcasting.
She   received   no  response.   Carpenter  also  contacted   the
congressional   office  in  Juneau  in  an  attempt   to   gather
information  about any federal decency laws, but  apparently  did
not request assistance in getting the show taken off the air.
          Carpenter testified that on July 22 she contacted three
or  four  advertisers and asked them if they knew their ads  were
being  run  during  the Tom Leykis Show and whether  they  wanted
their advertising dollars to support the content of the show.  On
the  same  day  she  also  faxed her complaint  letter  to  KJNO.
Carpenter  testified that she was unaware that,  as  required  by
federal  regulations, the letter would be placed in the  stations
public file.8  She did not write directly to Westwood One or  the
Tom  Leykis  Show and did not intend her letter to be  forwarded;
she thought it was a local issue.
          Carpenter testified that she did nothing related to The
Tom Leykis Show on July 23.
          KJNOs last broadcast of the program was on July 24.
          Carpenter testified that she probably spent a total  of
          six hours on the issue, and spent most of that time talking with
Kappler.  The KJNO station manager agreed at his deposition, in a
passage read at trial, that nothing in Carpenters letter  to  the
station  indicated to him she was a public person rather  than  a
private person expressing her personal point of view.
          Before  the July 24 broadcast, Carpenter did not  write
letters about the show to the editor of the local newspaper.  She
did  not appear on television or radio.  She did not organize  or
attend community meetings on the subject.  She did not picket the
station.  In other words, Carpenter did not do any of the  things
that  courts  in  other jurisdictions have found  significant  in
concluding that a plaintiff invited the publics attention to  his
or her views.9  Aside from discussions with Kappler, friends, and
associates, and a handful of telephone calls to local, state, and
federal   governmental  offices,  there  was  no  evidence   that
Carpenter communicated with anyone other than private individuals
specifically associated with airing the Tom Leykis Show  on  KJNO
(i.e.,  some  advertisers  and the station  itself).10  On  these
facts,  I  would conclude that Carpenter did not invite[]  public
attention to her views.
          I  also  conclude that the evidence did  not  establish
that  Carpenter  assumed  a position of  prominence  through  her
participation in the controversy.  Steve Rhyner, the  manager  of
KJNO,  testified  that Carpenter was not the  only  listener  who
complained.  He testified that major advertisers were  cancelling
from the show before Carpenter became involved.  [T]he straw that
broke  the  camels back, according to Rhyner, was one  particular
Leykis show that Rhyner did not care for personally.  Rhyner then
made  the  final  decision  to cancel the  show.   Carpenter  was
therefore  one of several people concerned about the  content  of
the  show  and there was nothing especially noteworthy about  her
participation.11
          Finally,  there  is no evidence that Carpenter  had  or
exercised  any  access  to  the  media,  much  less  regular  and
continuing  access.  The fact that Leykis read Carpenters  letter
on  the  air  during  the July 24 broadcast does  not  change  my
conclusion,  because  those charged with  defamation  cannot,  by
their  own  conduct,  create  their own  defense  by  making  the
claimant a public figure.12
          Because  Carpenter did not engage the publics attention
and  did not assume special prominence in the resolution  of  the
controversy over the Tom Leykis Show, I would hold that  she  was
not a public figure.13
          As  a  private figure, Carpenter is entitled to greater
protection  from hurtful speech.14  In Gertz, the Supreme  Court,
addressing  a  defamation  claim brought  by  a  private  figure,
explained:
          Public  officials and public figures  usually
          enjoy  significantly greater  access  to  the
          channels of effective communication and hence
          have   a   more   realistic  opportunity   to
          counteract  false statements  th[a]n  private
          individuals    normally    enjoy.     Private
          individuals are therefore more vulnerable  to
          injury,  and the state interest in protecting
          them is correspondingly greater.[15]
          
          The  Court  also reasoned that private figures  deserve
protection   more  than  public  figures  because   the   private
individual  has  not  voluntarily become  involved  in  a  public
controversy;  he  has  not  intentionally  exposed   himself   to
increased risk of injury.16  Where private figures are concerned,
a  different  balance is struck between First Amendment  concerns
and   the  states  interest  in  allowing  individuals  to   seek
compensation  for  injury to reputation.17  In  such  cases,  the
state  has a strong and legitimate interest in protecting private
individuals.18    This  interest,  and  the  justifications   for
distinguishing between defamation claims brought by  private  and
public  figures, apply with equal force to IIED claims  involving
speech.
          In Hustler Magazine, Inc. v. Falwell, the Supreme Court
applied defamation standards to an IIED claim brought by a public
figure.19  The Court held that the First Amendment limits an IIED
action  involving speech directed toward a public figure  to  the
same extent that it would limit a defamation action based on  the
same speech.20  That is, speech that is protected for purposes of
a defamation claim because it is opinion, or because it is a true
statement  of  fact,  or because it was false  but  made  without
actual  malice,  may not serve as the basis  for  an  IIED  claim
brought  by  a public figure.  Falwell by its terms governs  only
public  figure  cases.21   Because  I  believe  that  the  states
interest  in  protecting private individuals from the intentional
infliction  of  emotional distress outweighs the First  Amendment
interest   in  speech  on  private  matters  concerning   private
individuals,  I  would decline to extend Falwell to  IIED  claims
brought by private figures such as Carpenter.
          The  state  has  a  strong and legitimate  interest  in
protecting  private individuals from unprovoked  verbal  attacks.
Private  figures like Carpenter are both less equipped to  defend
themselves against attack and more worthy of protection than  are
public  figures who run the risk of closer public  scrutiny,  but
enjoy  significantly greater access to the channels of  effective
communication.22  Although Carpenter voluntarily participated  in
the  controversy  over the shows cancellation,  the  limited  and
discrete  nature of her participation did not warrant the  degree
of exposure she received.
          Application of defamation standards to the IIED  claims
of private figures  exposes to retaliation any private individual
exercising  her  own free speech rights to complain  about  media
program content.  In such circumstances, no one could ever safely
complain about the media without risking public attack.  It would
chill  listeners desire to voice their opinions.  This result  is
inconsistent with the value placed on listener input by  the  FCC
regulations  as  well  as  the values represented  by  the  First
Amendment.23
          Finally,   the  statements  that  allegedly   inflicted
emotional  distress on Carpenter were not fairly a  part  of  any
public  issue.   Neither  Carpenters sex  life  nor  her  contact
          information was a matter of widespread public interest.  Leykiss
remarks  generally  constituted  personal  insults  and  jabs  at
Carpenters alleged sexual proclivities; they were not the sort of
speech  that  encourages  the free and robust  debate  of  public
issues.24   Protection of personal insults or offensive  parodies
targeted  at  public  figures is necessary to ensure  uninhibited
public  debate.25  But protection of insults and threats directed
at  private  figures is not necessary to give adequate  breathing
space26 to the freedoms protected by the First Amendment.
          For  these  reasons, I would conclude that  Instruction
No.  17 misstated the applicable law.  I would remand for retrial
of  the IIED issue without affording Leykis the protection of the
ruling that Carpenter is a public figure.
BRYNER,  Chief  Justice,  with whom  CARPENETI,  Justice,  joins,
dissenting in part.
          For  the  reasons set out in my dissenting  opinion  in
Evans  ex  rel.  Kutch v. State,1 I disagree with  the  parts  of
todays opinion that uphold the constitutionality of Alaskas  non-
economic damages cap and punitive-damages  forfeiture provisions.
In all other respects I agree with and join in the opinion.
FABE, Justice, dissenting.
I.   Introduction
          I  cannot agree with the courts conclusion that Leykiss
statements, uttered during a national broadcast and discussing  a
public figure and a public issue, are unprotected speech. Because
I  disagree with the courts conclusion that the statements Leykis
made  during his broadcast are not protected speech,  I  conclude
that  the trial courts instructions did not prevent the jury from
fully  considering Carpenters intentional infliction of emotional
distress claim.
          In  my  view,  the record does not support  the  courts
conclusion   based largely on seven words  that Leykis  issued  a
call  to  arms  inviting listeners to harass Carpenter.   Even  a
cursory examination of the statements within the context  of  the
broadcast reveals that the call to arms was nothing more than the
sort  of  hyperbole and rhetoric that is typical of debate  about
public figures and matters of public concern in this day and age.
          Moreover,  the  trial court recognized the  controlling
precedent  for such statements  the United States Supreme  Courts
holding  in Hustler Magazine, Inc. v. Falwell that public figures
may not recover for IIED without proving false statements of fact
made  with actual malice1  and properly instructed the jury  that
Carpenter  could  not recover from Leykis unless  the  statements
were unprotected for another reason.2  Yet, without upsetting the
trial  courts  finding that Carpenter was a public  figure,3  the
court today concludes that Leykis may be subject to liability for
intentional  infliction  of  emotional  distress  for  statements
directed  at Carpenter during a heated discussion of an issue  at
the  heart  of First Amendment protections.  Where, as  here,  an
IIED claim is based on speech directed at a public figure and  on
a  matter  of  public concern, declining to limit IIED  liability
threatens  to  erode  the breathing space that  robust  political
dialogue requires.
II.  Leykis Did Not Issue a Call to Arms.
          I  disagree with the factual conclusions upon which the
courts  opinion  rests.  I do not agree that the record  supports
the  conclusion  that Leykis issued a call to  arms  intended  to
provoke  listeners  to harass Carpenter or  the  conclusion  that
Leykiss   words   were  devoid  of  any  attempt  to   persuade.4
Examination of Leykiss statements within the overall  context  of
the  broadcast  reveals  that  the statements  at  issue  focused
directly  on  the  issue  of public concern   namely,  the  shows
cancellation.   To  the  extent that  his  statements  encouraged
listeners to do anything, it was to persuade Carpenter, a  public
figure,  to  change her mind by demonstrating that she  held  the
minority  view and by suggesting alternate routes to address  her
concerns.
          The  court  does not sufficiently identify and  analyze
the  basis for its conclusion that Leykis issued a call to  arms.
Unable  to  point to any statements made by Leykis  that  overtly
encouraged  listeners  to  harass Carpenter,  the  court  patches
together  two  exchanges  separated  by  over  an  hour  in   the
broadcast.  The alleged call to arms apparently began when a male
caller  reported  Carpenters phone number,  which  was  partially
          blocked out, and her fax number.  The caller stated simply that I
think  everybody should give her a little piece  of  .  .  .  our
minds.   Leykis  responded to the caller not with an  exhortation
that  listeners use the number to harass Carpenter,  but  with  a
statement about censorship:
          Well, you know, again heres one person trying
          to  decide for an entire city what you  ought
          to  be  able  to listen to.  And,  you  know,
          again,  you  have an off button; you  have  a
          station changer button, a tuner.  You can get
          away  from the show if you dont want to  hear
          it.  But, no, its not that she doesnt want to
          hear it.  She doesnt want you to hear it.
          
          After  further exchange and another statement by Leykis
that  its  a shame when the minority can decide what the majority
are going to hear, the caller repeated his hope that people would
call  Carpenter  and  send her faxes.  Leykis  responded  not  by
agreeing  or  suggesting that listeners should harass  Carpenter,
but  by suggesting that the listener might also contact that fine
church  in your community that got together to try to do  us  in.
In  so  doing,  Leykis redirected the listeners  focus  to  other
proponents of the shows cancellation.5
          Leykiss   response  to  the  callers   publication   of
Carpenters numbers did not include any suggestion that  listeners
harass  Carpenter or make her life a living hell.  Indeed, Leykis
himself did not directly urge listeners to contact Carpenter  for
any  reason  whatsoever.  He made no statement to Carpenter  that
she  should  expect  such  treatment.  Instead,  his  speech  was
directed at the issue of public concern  the cancellation of  his
show due to what he perceived to be a minoritys wishes.  Even  if
Leykiss  exchange with the listener could be reasonably construed
as  actively  endorsing some sort of contact with Carpenter,  his
statements about censorship and contacting other censors  suggest
he  intended  to  foster political debate rather  than  encourage
personal harassment.  Such an exchange is no less protected  than
a  radio  shows  broadcast of a politicians publicly  listed  fax
number, with an exhortation that listeners contact the politician
to express their views on an issue of public concern.
          In  recognition  that the broadcast of  Carpenters  fax
number  alone  is  not sufficient, the court  also  relies  on  a
statement  by Leykis that appears to have occurred over  an  hour
after  the caller reported Carpenters fax number.  In this second
statement, Leykis said to a female caller from Juneau:  Well,  we
hate to lose you, but like I say, stay tuned, cause were going to
get  back  on in Juneau.  He later continued: And were  going  to
make  that  womans life a living hell.6  If Leykis intended  this
statement  to  encourage  listeners to send  harassing  faxes  to
Carpenter, common sense suggests that he would have repeated  the
fax  number  instead of assuming that listeners had written  down
the contact information over an hour earlier.  But Leykis did not
repeat  Carpenters fax number.  He did not propose that listeners
make  Carpenters  life hell by contacting her, nor  did  he  make
statements encouraging them to harass Carpenter.  Read fairly and
          in context, the statement merely reflects Leykiss intent to get
back on the air in Juneau and his opinion and commentary that, in
so doing, he would make Carpenters life miserable.
          The  notion  that  Leykis exhorted  viewers  to  harass
Carpenter  is  further undermined by the reaction  of  listeners.
Contrary  to  the  onslaught of harassing faxes  that  one  might
expect if Leykis incited his national audience to make Carpenters
life  a  living hell, Carpenter testified that she  received  one
phone  message7 and several faxes.  Carpenter testified that  the
faxes  were  dealing  with  the show being  taken  off  the  air.
Indeed,   the  faxes  submitted  as  exhibits  focused   on   the
discontinuation of the shows broadcast.8  While listeners actions
in  response  to  the  broadcast do not  conclusively  prove  the
reasonable interpretation of Leykiss comments, the faxes  support
a  conclusion that Leykis did not encourage listeners  to  harass
Carpenter  and  that listeners did not interpret  his  statements
that  way.   Moreover,  even  if he did  encourage  listeners  to
contact  Carpenter about the issue of public concern   the  shows
cancellation   his  actions fall far short  of  a  call  to  arms
exhorting  listeners to violate the law to harass Carpenter.   In
sum,  this  patchwork  of  statements  cited  by  the  court   as
supporting  a call to arms represents nothing more than  rhetoric
addressing a public figure and an issue of public concern.
          The  record demonstrates the fallibility of the  courts
presumption   that   we  can  meaningfully  distinguish   between
statements intended to contribute to debate and those intended to
harass.   It  is  precisely  because  of  the  danger  of  courts
attempting to draw such fine lines that this court and the United
States  Supreme Court have extended protection to speech directed
at public figures and matters of public concern.
III. The First Amendment Protects Leykiss Statements.
          The  courts  opinion today is wholly inconsistent  with
the  United  States  Supreme Courts holding in Hustler  Magazine,
Inc. v. Falwell that public figures may not recover on claims  of
IIED  without  a  showing of false statements of fact  made  with
actual malice.9
          As the court construes it, Carpenters IIED claim is not
based  on  any  statement of fact, false or otherwise.   Instead,
while  conceding  that  Leykis  did  not  make  statements   that
constitute  incitement,10 the court concludes that his statements
provoking  his  listeners and inviting  them  .  .  .  to  harass
Carpenter  can  be the basis for liability.11    This  conclusion
violates both the holding and the rationale of Falwell.
          In  Falwell, the Supreme Court noted that in the  world
of  debate  about public affairs, many things done  with  motives
that   are  less  than  admirable  are  protected  by  the  First
Amendment.12   The Court reasoned that while . . . a  bad  motive
may be deemed controlling for purposes of tort liability in other
areas  of the law, we think the First Amendment prohibits such  a
result in the area of public debate about public figures.13  As a
result, the Supreme Court held that public figures cannot recover
for  IIED  without showing a false statement of  fact  made  with
malice.14
          As  the Supreme Court noted in Falwell, [a]t the  heart
          of the First Amendment is the recognition of the fundamental
importance  of the free flow of ideas and opinions on matters  of
public  interest  and concern.15  The Supreme Court  went  on  to
explain  the importance of protecting speech critical  of  public
figures:
          We  have therefore been particularly vigilant
          to  ensure  that  individual  expressions  of
          ideas remain free from governmentally imposed
          sanctions.  The First Amendment recognizes no
          such thing as a false idea. . . .
          
               The  sort  of  robust  political  debate
          encouraged by the First Amendment is bound to
          produce speech that is critical of those  who
          hold  public  office or those public  figures
          who are intimately involved in the resolution
          of  important public questions or, by  reason
          of  their  fame,  shape events  in  areas  of
          concern  to  society at large.  .  .  .  Such
          criticism,  inevitably, will  not  always  be
          reasoned or moderate; public figures as  well
          as   public  officials  will  be  subject  to
          vehement, caustic, and sometimes unpleasantly
          sharp attacks.[16]
          
          As  explained above, Carpenter, a public figure,  bases
her   IIED  claim  on  rhetoric  spoken  by  Leykis  during   his
discussions  of  Carpenters efforts to have his  show  cancelled.
Falwell  makes clear that such opinion statements cannot  be  the
basis for an IIED claim.
          To  find  error  in  the trial courts instruction,  the
court  attempts to limit Falwell today on two different  grounds.
First,  without  citing any authority from any court,  the  court
appears   to   limit   Falwell  by  reading  its   constitutional
protections  as inapplicable to statements that are neither  true
nor  false.17  However, this reading cannot be correct.   Falwell
is  clearly  intended to protect opinion statements about  public
figures  and matters of public concern.  And the very  definition
of   an  opinion  statement  is  that  its  accuracy  cannot   be
established.   By  attempting to distinguish  this  case  on  the
grounds that Leykiss statement can be neither true nor false, the
court  exposes all opinion statements directed at public  figures
to  IIED  liability. This is not only clearly contrary to Falwell
but substantially eviscerates the protections it extended.
          The court also tries to limit Falwell by declaring that
its  protection  applies only to speech about  public  figures.18
But  the  First Amendments robust protections for debate  in  the
public realm simply cannot turn on such an amorphous distinction.
Moreover,  I cannot conclude that the statements at  issue   made
during  a national broadcast  were not about Carpenter.   Indeed,
Leykiss  statement  that  his  return  to  the  air  would   make
Carpenters  life a living hell is undeniably about Carpenter  and
her  reaction to his show.  The concern that animated the  Courts
holding  in Falwell  the need to protect heated rhetoric directed
          at public figures and issues of public concern  applies
regardless  of how a plaintiff chooses to package her  claim  and
regardless of whether a statement is about a public figure or  to
a  public  figure.19  Here, Leykiss words, on a matter of  public
concern  and regarding a public figure, reflect his opinions  and
his attempts to persuade his audience of an injustice.  Certainly
Leykiss  remarks  about Carpenter were crass, mean,  and  utterly
repugnant.   And  they could be construed as  endorsing  listener
contact  with Carpenter to express outrage that her  actions  had
caused  his  show to be cancelled in Juneau.  But such incitement
to  action, petition, or protest on matters of public concern and
directed at public figures lies at the core of the sort of speech
protected by Falwell.20
          Statements of opinion on matters of public concern  are
often   characterized  by  hyperbole  or  very  crude   offensive
method[s] of stating a political opposition.21  And there  is  no
doubt  that  Leykiss remarks about Carpenter had an ugly,  sexist
tone.  Nonetheless, because political debate is the core of First
Amendment protection, the United States Supreme Court has evinced
a  strong  commitment  to ensuring that political  hyperbole  and
emotionally  charged rhetoric can be expressed  without  fear  of
liability  or  sanction.  Time and again, the Supreme  Court  has
protected  such speech.  For example, in Watts v. United  States,
the  United  States  Supreme Court overturned  Wattss  conviction
under  a  statute  prohibiting threats to the  President  of  the
United States.22  During a public rally, Watts had stated that he
did  not  intend to report for the draft and that [i]f they  ever
make me carry a rifle the first man I want to get in my sights is
L.B.J.23   The  Court upheld the statute, but  overturned  Wattss
conviction,  cautioning  that  the kind  of  political  hyperbole
indulged  in  by  Watts  was  not a threat.24   Noting  that  the
political arena is often vituperative, abusive, and inexact,  the
Court  reasoned that Wattss only offense was a kind of very crude
offensive method of stating a political opposition.25
          Similarly,  in  NAACP v. Claiborne  Hardware  Co.,  the
United  States  Supreme Court overturned a judgment  holding  the
Field Secretary of the NAACP liable for the economic consequences
of  a  boycott of white businesses.26  The state court  partially
based  its  finding  of liability on a speech  which  included  a
statement  that  [i]f we catch any of you going in  any  of  them
racist  stores, were gonna break your damn neck.27   The  Supreme
Court  acknowledged that [i]n the passionate atmosphere in  which
the  speeches were delivered, they might have been understood  as
inviting  an  unlawful  form  of  discipline  or,  at  least,  as
intending to create a fear of violence.28  Nonetheless, the Court
held  that the speech was protected, reasoning that [a]n advocate
must  be  free  to  stimulate his audience with  spontaneous  and
emotional  appeals for unity and action in a common cause.   When
such  appeals do not incite lawless action, they must be regarded
as protected speech.29
          Despite  this command that speech on matters of  public
concern  be  given  great latitude, the court decides  this  case
without  citing  any  explicit statement  by  Leykis  encouraging
listeners  to  illegally harass Carpenter.   Instead,  the  court
          reads between the lines of several statements of opinion
addressing a public figure and a matter of public concern.  In so
doing,  the  court  violates the principle that claims  involving
such  statements  should  be read against  the  background  of  a
profound  national  commitment to the principle  that  debate  on
public  issues  should be uninhibited, robust, and wideopen,  and
that  it  may  well  include  vehement,  caustic,  and  sometimes
unpleasantly sharp attacks on government and public officials.30
          It  is  this commitment to robust debate that  led  the
United  States  Supreme Court to create heightened standards  for
IIED  claims  by public figures in Falwell.  Yet the court  today
sees fit to rely solely on the elements of IIED to protect speech
directed   at   public  figures   elements  the   Supreme   Court
specifically  declared inadequate in Falwell.  The United  States
Supreme Court explicitly rejected the notion that the requirement
of  outrageousness  sufficiently protects speech  on  matters  of
public concern, reasoning in Falwell:
          Outrageousness in the area of  political  and
          social     discourse    has    an    inherent
          subjectiveness about it which would  allow  a
          jury to impose liability on the basis of  the
          jurors  tastes  or views, or perhaps  on  the
          basis   of  their  dislike  of  a  particular
          expression.  An outrageousness standard  thus
          runs  afoul  of our longstanding  refusal  to
          allow  damages  to  be  awarded  because  the
          speech   in  question  may  have  an  adverse
          emotional impact on the audience.[31]
          
The   subjective  nature  of  outrageousness,  particularly  when
applied  to  rhetoric, eviscerates the protection for  speech  on
matters of public concern or directed at public figures.  Because
liability  under a subjective test is unpredictable, it threatens
to  curb  the  use  of  such persuasive  tools  as  rhetoric  and
hyperbole in political speech. It is this premise that the United
States  Supreme  Court  recognized in Falwell,  and  it  is  this
premise  that creates the need to establish heightened  standards
for IIED claims by public figures.
          In  stark  contrast  to  the heightened  standards  the
Supreme  Court  deemed  necessary in  Falwell,  the  court  today
concludes  that the trial court erred by failing to instruct  the
jury  that  a public figure may recover for IIED based on  speech
that  is  intended to harass32 or that is intended to  harass  by
provoking a widespread audience to react with hostility.33  In so
doing,  the  court  creates a new category of unprotected  speech
directed  at  public  figures   a  new  category  whose   precise
boundaries it does not define.
          Unlike   the   Supreme  Courts  conscious  efforts   to
carefully  circumscribe liability and protect  public  debate  in
Falwell, Watts, and Claiborne, todays opinion creates a broad and
unbounded  new category of unprotected speech directed at  public
figures.   The court does not clarify how one can determine  when
speech  is  about a public figure, nor does it define  harass  or
explain how one can distinguish between opinions that harass  and
          those that do not.   Then, despite recognizing the difficulty of
drawing  the  line accurately, the court expresses confidence  in
the  jurys  ability  to do so.  In my view,  such  confidence  is
unwarranted.  In the area of the First Amendment, this  vagueness
is  particularly  pernicious.   In  short,  the  First  Amendment
demands more.
          Todays   holding  threatens  to  further  chill  speech
because  of  the  courts conclusion that the  jury  may  consider
Leykiss derogatory comments  even those that the opinion concedes
are  protected  speech   in evaluating Carpenters  IIED  claim.34
Protected  speech  can  not  serve as the  basis  for  liability,
regardless  of whether that speech serves as the sole  basis  for
liability  or  is  considered as one factor  by  the  jury.   The
purpose  of protecting speech is to avoid unnecessarily  chilling
public  debate and dialogue.  As the United States Supreme  Court
recognized  in  New  York  Times v.  Sullivan,  speakers  fearing
potential  liability for their statements will tend to make  only
statements  which  steer  far wider  of  the  unlawful  zone.  35
Coupled  with  the fear of liability for opinion statements,  the
knowledge  that  even protected speech could be considered  by  a
jury   will  chill  discussion  of  matters  of  public  concern.
Allowing  the jury to consider protected speech wholly undermines
any protection ostensibly granted that speech.
          Moreover,   the   court  advances  a  startlingly   low
threshold  for  testing whether Leykiss speech can be  penalized,
suggesting  in  its discussion of jury instructions  that  it  is
enough  that  a reasonable person could think that  his  comments
were  likely  to prompt listeners to contact or communicate  with
Carpenter  in  a  hostile fashion.36  But encouraging  others  to
contact  or communicate with a public figure, even in  a  hostile
fashion,  lies  at the heart of public debate and the  democratic
system itself.  For example, under this holding, liability  could
even  be imposed on a broadcast that encouraged listeners to call
a town mayor and express their views on an issue such as taxation
if listeners were encouraged to insult the mayor.  Such liability
erodes the breathing space for matters of public concern that the
United States Supreme Court has vigilantly guarded.
          The court turns to analogy to justify its holding.   To
support  its  conclusion that Leykiss speech is unprotected,  the
court   analogizes  to  decisions  upholding  ordinances  banning
residential  picketing.37  The court cites Frisby v.  Schultz  38
for  the  proposition that the home is given special  solicitude.
In  Frisby,  the  United States Supreme Court upheld  a  content-
neutral ordinance which prohibited only focused picketing  taking
place in front of a particular residence.39  The Court emphasized
that  protestors  were not banned from residential  neighborhoods
and  remained free to go door-to-door, to distribute  literature,
and  to  contact residents by phone.40  But upholding a  content-
neutral ordinance banning a narrow type of picketing is a far cry
from penalizing rhetoric because it may have encouraged listeners
to  contact a public figure about a matter of public concern.  As
a result, Frisby simply does not support a conclusion that Leykis
incited  unlawful conduct on the part of his listeners.  Even  if
he  encouraged listeners to blanket Carpenter with objections  to
          the  shows  cancellation, Leykiss speech  is  protected
communication.
          Similarly, United States v. Popa,41 relied  on  by  the
court   today,42  demonstrates  the  constitutionally   important
difference  between  unprotected harassment  and  rhetoric  on  a
matter of public concern.  In Popa, the D.C. Circuit vacated  the
conviction of a defendant who had been prosecuted under a statute
making  it  a  crime  to make telephone calls without  disclosing
[ones]  identity  and with intent to annoy, abuse,  threaten,  or
harass any person.43  The defendant had made seven phone calls to
the   United  States  Attorney  for  the  District  of  Columbia,
including  two recorded calls in which he referred to the  United
States Attorney as a criminal and a whore, who violated . . . our
rights.44  Noting that the defendant testified that he had called
to  complain  about having been assaulted by police officers  and
the  prosecutors conduct, the court reasoned that the statute was
unconstitutional as applied because [p]unishment of those who use
the  telephone to communicate a political message did not further
the   governments   interest  in  protecting   individuals   from
noncommunicative uses of the telephone.45  Similarly,  the  First
Amendment  would likely protect a listener who directly contacted
Carpenter  to  express a view.  And, as detailed earlier,  Leykis
did  not  encourage  listeners to illegally harass  Carpenter  by
phone  or  by fax.  At most, he encouraged them to express  their
opinions and petition on behalf of the show.  As the D.C. Circuit
concluded  in  Popa, such political communication with  a  public
figure on a matter of public concern is protected speech.
          Moreover,  the courts analogy to telephonic  harassment
overlooks   the   fundamental  distinction  between   prohibiting
harassing  calls and punishing speech that encouraged  others  to
make telephone calls.  The court does not base its holding on any
conduct  by  Leykis;  he  did  not telephone  or  fax  Carpenter.
Instead, the courts holding is based on a conclusion that Leykiss
words  could  be construed to exhort others to telephone  or  fax
Carpenter.   Despite  the  obvious  echoes  of  incitement   that
permeate this line of reasoning, the court makes no argument that
Leykiss actions rose to the level of incitement or that there was
any error in the jurys instruction on incitement.
          Today  the  court overlooks over forty years of  United
States  Supreme  Court precedent dedicated to  ensuring  adequate
breathing  space for speech about public figures and  matters  of
public  concern.   It  directly  contravenes  the  United  States
Supreme  Courts  command that claims of IIED  brought  by  public
figures must meet the heightened standards of proving false facts
and actual malice.
IV.  The  Mount  Juneau Privilege for Matters of  Public  Concern
     Protects Leykiss Statements.
     
          The  courts  opinion is also wholly  inconsistent  with
this  courts longstanding policy of protecting speech on  matters
of  public interest and concern through application of the actual
malice standard.  Even if Carpenter were not a public figure, the
Mount  Juneau privilege protects Leykiss statements and precludes
liability  in the absence of actual malice and a false  statement
          of fact.  As this court recognized in Mount Juneau:
          [T]he  public  figure test is  not  the  only
          route  to  application of the  actual  malice
          standard.   We  further  protect   the   free
          exchange  of  ideas  by applying  the  actual
          malice standard to publications on issues  of
          public  interest  and concern,  even  if  the
          defamation plaintiff is not a public  figure.
          . . .[46]
          
          Citing   Pearson  v.  Fairbanks  Publishing   Co.,   we
explained the rationale for such a policy as follows:
          On  the  one  hand there is the  interest  in
          safeguarding  the  right to ones  reputation.
          On  the  other hand there is the interest  in
          allowing freedom of debate and expression  on
          public questions and issues.  We believe that
          a  fair  balance of these competing interests
          is  achieved  where  the  law  of  defamation
          permits  one, without liability for  damages,
          to  comment,  criticize and pass judgment  on
          statements  made by another on  an  issue  or
          matter  of  public  interest,  even  if  such
          comment,   criticism  and  judgment  involves
          misstatements  of  fact   so  long  as   such
          misstatements  are relevant  to  the  subject
          matter  spoken or written about  by  the  one
          claiming  to be defamed and are not shown  by
          him to have been made with actual malice.[47]
          
            In  Gertz  v.  Robert Welch, Inc., the United  States
Supreme  Court concluded that although the actual malice standard
was  appropriately applied to those who occupy positions of  such
pervasive power and influence that they are deemed public figures
for  all purposes and to limited-purpose public figures who  have
thrust   themselves   to  the  forefront  of  particular   public
controversies in order to influence the resolution of the  issues
involved, a separate analysis is required with respect to private
individuals.48  The Court held that so long as they do not impose
liability without fault, the States may define for themselves the
appropriate  standard of liability for a publisher or broadcaster
of defamatory falsehoods injurious to a private individual.49
          In the wake of Gertz, a majority of states have adopted
a  negligence standard with respect to defamation claims  brought
by  private  individuals, making it easier for private plaintiffs
to  recover  in  defamation actions.50  This  court  declined  to
follow  suit  in  Mount  Juneau, reaffirming  its  commitment  to
freedom of speech and expression on matters of public interest by
adhering  to  the  actual  malice  standard,  even  for   private
individuals.  In Taranto v. North Slope Borough, we recognized  a
further  extension  of  this privilege to speech  on  matters  of
public  health and safety.51  These cases reflect our  consistent
policy   of  balancing  the  need  to  safeguard  an  individuals
reputation with the need for freedom of debate and expression  on
          issues of public concern.52
          To  the  extent that the courts opinion can be read  to
allow individuals to recover damages under IIED claims for speech
that  would  otherwise be privileged as speech  on  a  matter  of
public  interest and concern, I would depart from its  reasoning.
Instead, in recognition of the inherent logic of Falwell, and  in
respect  for  the balance this court has consistently  struck  in
favor  of  discussion on public issues, I would extend protection
to Leykiss statement under the Mount Juneau privilege.  Because I
think  it  is clear that Leykiss comments related to a matter  of
public  interest and concern, the Mount Juneau privilege applies,
protecting  all statements except false statements of  fact  made
with malice.



V.   Conclusion
          Because I disagree that Leykis encouraged his listeners
to  harass  Carpenter, and because Leykiss  speech  is  protected
opinion speech directed at a public figure and a matter of public
concern, I respectfully dissent from the courts opinion today.
_______________________________
     1    47 Code of Federal Regulations 73.1202  (2004) provides
that

          All written comments and suggestions received
          from  the  public by licensees of  commercial
          AM,  FM, TV and Class A TV broadcast stations
          regarding operation of their station shall be
          maintained  in  the  local public  inspection
          file,  unless the letter writer has requested
          that  the letter not be made public  or  when
          the licensee feels that it should be excluded
          from  the  public inspection file because  of
          the   nature  of  its  content,  such  as   a
          defamatory or obscene letter.
          
          Carpenter has not contended that the publics  right  to
comment  about  broadcast licensees is relevant  to  her  claims,
including her IIED claim.

     2    AS 09.17.020(j).

     3    We refer to Tom Leykis and Westwood One collectively as
Leykis  unless  context  requires  otherwise.   On  issues   that
Westwood One alone appeals, we refer to it by name.

     4     Treacy v. Municipality of Anchorage, 91 P.3d 252,  260
(Alaska 2004).

     5    Botelho v. Griffin, 25 P.3d 689, 692 (Alaska 2001).

     6    Alaska Legislative Council v. Knowles, 21 P.3d 367, 370
(Alaska 2001).

     7     French  v. Jadon Inc., 911 P.2d 20, 32 (Alaska  1996);
see also Restatement (Second) of Torts  558 (1977).

     8     Briggs v. Newton, 984 P.2d 1113, 1120-21 (Alaska 1999)
(quoting  French, 911 P.2d at 32); see also Restatement  (Second)
of Torts  559 (1977).

     9     Restatement (Second) of Torts  566 cmt. a (1977);  see
also Milkovich v. Lorain Journal Co., 497 U.S. 1, 13 (1990).

     10    See Restatement (Second) of Torts  559 cmt. d (1977).

     11     Sands  v.  Living Word Fellowship, 34 P.3d  955,  960
(Alaska 2001).

     12     See,  e.g.,  Milkovich, 497  U.S.  at  19  (rejecting
wholesale  defamation  exemption of all  statements  in  form  of
opinion, but holding that statement on matters of public  concern
must  be  provable as false before there can be  liability  under
state defamation law); see also Sands, 34 P.3d at 960.

     13     Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50-51
(1988)  (quoting Bose Corp. v. Consumers Union of United  States,
Inc., 466 U.S. 485, 503-04 (1984)).

     14     Sands, 34 P.3d at 960 (quoting Milkovich, 497 U.S. at
24 (Brennan, J., dissenting)).

     15     See Wilson v. Grant, 687 A.2d 1009 (N.J. Super.  App.
Div.  1996) (holding radio broadcasters description of  plaintiff
as  stalker, some little weasel, a vicious swine, a sick  cookie,
and  sick,  no  good,  pot smoking, wife beating  skunk  was  not
defamatory).

     16    See, e.g., Leidholdt v. L.F.P., Inc., 860 F.2d 890 (9th
Cir.  1988) (holding article describing Leidholdt and members  of
her  organization  as  pus bloated, sexually repressed,  [h]ating
men,  hating sex, and hating themselves, and frustrated group  of
sexual fascists was not defamatory).

     17    FCC v. Pacifica Found., 438 U.S. 726 (1978).

     18    Id. at 749-51.

     19    The three prongs of the Miller test are:

          (a)  whether  the  average  person,  applying
          contemporary community standards  would  find
          that  the work, taken as a whole, appeals  to
          the  prurient interest; (b) whether the  work
          depicts or describes, in a patently offensive
          way,  sexual conduct specifically defined  by
          the applicable state law; and (c) whether the
          work,   taken   as  a  whole  lacks   serious
          literary,  artistic, political, or scientific
          value.
          
Miller v. California, 413 U.S. 15, 24 (1973) (citation omitted).

     20     Gooding v. Wilson, 405 U.S. 518, 525 (1972)  (quoting
Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)).

     21    The Restatement (Second) of Torts provides:

          One   who   gives  publicity  to   a   matter
          concerning  another  that  places  the  other
          before the public in a false light is subject
          to  liability  to the other for  invasion  of
          privacy, if
          
          (a)   the false light in which the other  was
          placed  would  be  highly  offensive   to   a
          reasonable person, and
          
          (b)   the actor had knowledge of or acted  in
          reckless disregard as to the falsity  of  the
          publicized  matter  and the  false  light  in
          which the other would be placed.
          
Restatement (Second) of Torts  652E (1977).

     22    Restatement (Second) of Torts  652E cmt. b (1977).

     23    See Time, Inc. v. Hill, 385 U.S. 374, 384 n.9 (1967).

     24    Id. at 387-88; Flowers v. Carville, 310 F.3d 1118, 1132
(9th  Cir. 2002) (citing Restatement (Second) of Torts  652E cmt.
b (1977)).

     25     See White v. Fraternal Order of Police, 909 F.2d 512,
518  (D.C.  Cir. 1990);  Leidholdt v. L.F.P. Inc., 860 F.2d  890,
893 (9th Cir. 1988); Rinsley v. Brandt, 700 F.2d 1304, 1307 (10th
Cir. 1983).

     26    Plaintiffs counsel objected at trial to Instruction No.
17s  discussion of  speech intended to provoke a hostile reaction
under circumstances where a clear and present danger of immediate
violence existed.

     27     He  cites Turney v. State, 936 P.2d 533, 541  (Alaska
1997),  Marks  v.  City of Anchorage, 500 P.2d 644,  647  (Alaska
1972),  and  Anniskette  v. State, 489 P.2d  1012,  1013  (Alaska
1971),  for the proposition that speech may be punished  only  in
the most limited circumstances.

     28    Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).

     29    City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska
2004).

     30    Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001).

     31    Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1150
n.21 (Alaska 1999) (citations omitted).

     32    Id.

     33     Beck v. State, Dept of Transp. & Pub. Facilities, 837
P.2d  105,  114 (Alaska 1992); see also State, Dept of  Corr.  v.
Johnson,  2  P.3d 56, 61 (Alaska 2000) (reversing for  new  trial
where  erroneous  instruction made  verdict  for  plaintiff  more
likely).

     34    The dissenting opinion never addresses the adequacy of
Instruction No. 17.

     35     Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 5253,
5556 (1988).

     36     Pearson  v.  Fairbanks Publg Co., 413 P.2d  711,  715
(Alaska 1966).

     37     Cf.  Falwell, 485 U.S. at 5253, 5556  (holding  under
federal law that  public figure claiming IIED based on defamatory
nature of speech must prove actual malice).

     38    485 U.S. 46 (1988).

     39     Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974)
(emphasis added).

     40     Wolston  v.  Readers Digest Assn, 443 U.S.  157,  166
(1979).

     41    Falwell, 485 U.S. at 56.

     42     Cf. Mount Juneau Enters., Inc. v. Juneau Empire,  891
P.2d  829, 838 (Alaska 1995) (applying actual malice standard  to
defamation  claim  arising out of newspaper article  concern[ing]
matters of public interest).

     43    Falwell, 485 U.S. at 53 (emphasis added).

     44     The  dissent contends that Falwell states that public
figures  may not recover on claims of IIED without a  showing  of
false statements of fact made with actual malice.  Dissent at 71.
But Falwells IIED claim, unlike Carpenters, turned on the falsity
of  the words describing Falwell.  He therefore had to prove both
a falsehood and actual malice to recover for either defamation or
IIED.  Falwell does not stand for the proposition that every IIED
claim  based  on  an  utterance invariably requires  proof  of  a
falsehood.  Permitting Carpenter to pursue an IIED claim that  is
not dependent on factual falsity does not permit her to evade the
constitutional limitations that apply to her defamation claim.

          The  dissent  asserts that we are reading  Falwell  too
narrowly,  expos[ing] all opinion statements directed  at  public
figures to IIED liability.  Dissent at 73.  But as we make clear,
only  Leykiss  allegedly harassing conduct  is  exposed  to  IIED
liability.  His opinions, whether truthful or not, are protected.

          The dissent may assume that the Court thinks defamation
standards  underlie  every dispute arising  out  of  a  published
utterance.   That assumption would be incorrect.   Cf.  Cohen  v.
Cowles  Media  Co.,  501 U.S. 663 (1991).  In  that  case,  Cohen
pursued a promissory estoppel claim against the news company that
truthfully  identified him in news stories  as  its  news  source
after  promising  him anonymity.  Although the Minnesota  Supreme
Court  held  that  allowing the claim  would  violate  the  First
Amendment,  the  United States Supreme Court  held  that  because
Cohen  was  not attempting to use the claim to avoid  the  strict
requirements  for  establishing  a  libel  or  defamation  claim,
permitting  the  claim did not offend the Constitution.   Id.  at
667,  671.  Consider also a public figures IIED claim based on  a
published  threat  of  harm.  Not all  IIED  claims  based  on  a
published utterance invariably require proof of falsity and,  for
public figures, proof of actual malice.

     45    The show was broadcast with a ten-second delay; Leykis
could potentially prevent content from being broadcast.

     46     Esposito-Hilder v. SFX Broad., Inc., 665 N.Y.S.2d 697
(N.Y. App. Div. 1997).

     47    Id. at 701.

     48    Finch v. Greatland Foods, Inc., 21 P.3d 1282, 1288 n.21
(Alaska  2001)  (citations omitted); Richardson v.  Fairbanks  N.
Star  Borough,  705  P.2d 454, 456 (Alaska  1985)  (adopting  the
Restatement (Second) of Torts  46(1) (1965) in defining  a  claim
for IIED).

     49    Id. at 1289.

     50     Id.   Compare  Lybrand v. Trask, 31 P.3d  801,  80205
(Alaska 2001) (affirming superior courts dismissal of IIED  claim
because  neighbors conduct in painting biblical slogans  on  roof
was  not  outrageous) and Chizmar v. Mackie, 896  P.2d  196,  209
(Alaska  1995) (affirming trial courts directed verdict based  on
conclusion that physicians alleged misdiagnosis of patient as HIV
positive  was not outrageous conduct even when doctor  failed  to
warn  patient that screening test upon which diagnosis was  based
was unconfirmed) with Teamsters Local 959 v. Wells, 749 P.2d 349,
358 (Alaska 1988) (holding that threatening union members life if
he  did  not convince his supervisor-spouse to quit during strike
was outrageous conduct as matter of law).

          Considered in isolation, Leykiss derogatory words  that
merely  ridiculed Carpenter would not give rise to an IIED claim.
There is therefore no danger that they could be the basis for  an
IIED claim that might infringe on the First Amendment.

     51     Lybrand,  31 P.3d at 803 n.4 (quoting  with  approval
Restatement (Second) of Torts  46 cmt. d (1965)).

     52     Chizmar  v.  Mackie, 896 P.2d 196, 209 (Alaska  1995)
(quoting  Tommys Elbow Room, Inc. v. Kavorkian,  727  P.2d  1038,
1044 (Alaska 1986)).

     53    Gertz, 418 U.S. at 349.

     54    Finch, 21 P.3d at 1288.

     55     Fyffe  v.  Wright,  93 P.3d 444,  456  (Alaska  2004)
(quoting Teamsters Local 959, 749 P.2d at 359 n.14).

     56     Cf.  Cohen  v. Cowles Media Co., 501  U.S.  663,  671
(1991).

     57     Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 5253,
5556  (1988);  Mount Juneau Enters., Inc. v. Juneau  Empire,  891
P.2d 829, 838 (Alaska 1995).

     58    Our analysis of federal law makes it unnecessary for us
to  consider  in  this  appeal whether Carpenter  was  a  limited
purpose  public figure and the scope of that status.   We  assume
that  before  a  court applying federal law could hold  that  the
actual  malice privilege attached to Leykiss conduct  during  the
nationwide  broadcast, it would have to decide whether  Carpenter
was  indeed  a  limited purpose public figure and,  if  she  was,
whether the privilege arising from that status was geographically
or  contextually limited. Carpenter was a Juneau resident locally
challenging Juneau broadcasts of the show.

     59    Miller v. California, 413 U.S. 15, 2425 (1973).

     60     Chaplinsky  v.  New Hampshire, 315  U.S.  568,  57172
(1942).

     61     Virginia v. Black, 538 U.S. 343, 35960 (1999) (citing
Watts  v. United States, 394 U.S. 705, 708 (1969), and R.A.V.  v.
City of St. Paul, 505 U.S. 377, 388 (1992)).

     62    Schenck v. United States, 249 U.S. 47, 52 (1919).

     63    Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

     64     Gertz  v.  Robert Welch, Inc., 418  U.S.  323,  32728
(1974).

     65    Time, Inc. v. Hill, 385 U.S. 374, 386 n.9 (1967) ([A]ll
libel  cases  concern public exposure by false  matter,  but  the
primary harm being compensated is damage to reputation.).

     66     Restatement (Second) of Torts  46(1) (1965)  (stating
that  one who engages in extreme and outrageous conduct is liable
for emotional distress and any resulting bodily harm).

     67    Frisby v. Schultz, 487 U.S. 474, 484 (1988).

     68    Id. at 484.

     69     Id.  at 485.  See also Carey v. Brown, 447 U.S.  455,
47071  (1980); FCC v. Pacifica Found., 438 U.S. 726, 748  (1978);
Rowan v. Post Office Dept, 397 U.S. 728, 737 (1970).

     70     The dissent does not challenge our statement that the
Supreme  Court in Frisby expressed a special solicitude  for  the
home.   Dissent at 79.  But it does imply that we are  penalizing
rhetoric  because  it  may have encouraged listeners  to  contact
[Carpenter].  Dissent at 79.  That is not what we are doing.   We
are instead recognizing that harassment of even public figures is
actionable if the claimant can prove the elements of IIED and can
prove  that  the  intended purpose of the  words  was  merely  to
harass.   If  Leykis had merely encouraged listeners  to  blanket
Carpenter  with objections to the shows cancellation, his  speech
would  not have been intended to merely harass and would  not  be
actionable.

     71     Gormley v. Dir., Conn. State Dept of Prob., 632  F.2d
938,   94142  (2d  Cir.  1980)  (holding  that  Connecticut   may
criminally  punish  harassing phone  calls  because  the  statute
punishes  both  harassing conduct and speech); United  States  v.
Lampley,  573  F.2d 783, 787 (3d Cir. 1978) (holding  that  [t]he
appellant has not claimed, nor could he successfully do so,  that
it  is  beyond  the  power  of the Congress  to  impose  criminal
sanctions  on  the  placement of interstate  telephone  calls  to
harass, abuse or annoy);  Walker v. Dillard, 523 F.2d 3, 46  (4th
Cir.  1975)  (state statute making it a misdemeanor to  curse  or
abuse  anyone,  or use vulgar, profane, threatening  or  indecent
language  over  any telephone struck down as vague and  overbroad
because the state had not given the law a narrowing construction,
but  also  stating that [w]e start from the proposition that  the
state   has   a  legitimate  interest  in  prohibiting   obscene,
threatening,  and  harassing  phone  calls,  none  of  which  are
generally  thought  of  as  protected  by  the  First  Amendment)
(emphasis added, citations omitted).

          Cf.  United  States v. Popa, 187 F.3d 672, 67677  (D.C.
Cir.  1999) (striking down statute upheld in Lampley due to  lack
of  exception for public or political discourse, but  recognizing
that   governments  interest  in  the  protection   of   innocent
individuals from fear, abuse or annoyance at the hands of persons
who  employ  the  telephone, not to communicate,  but  for  other
unjustifiable motives was important or substantial).

     72     United States v. Popa, 187 F.3d 672, 67677 (D.C. Cir.
1999).   The dissent reads that case as concluding that political
communication with a public figure on a matter of public  concern
is  protected speech.  Dissent at 81.  That holding is consistent
with  our  holding that speech can be punished if made  with  the
intent  merely to harass and with no intent to persuade,  inform,
or  communicate.  As did the court in Popa, we exclude  from  our
holding  those  who  intend  to engage  in  public  or  political
discourse.   Popa, 187 F.3d at 677.  Decisions of the  Courts  of
Appeal  for  the Second and Third Circuits uphold anti-harassment
statutes   even  though they do not contain  a  political  speech
exception  because they target conduct.  See supra note 71.  Like
the  anti-harassment statutes, the tort of  IIED  as  applied  to
Carpenters claim addresses the allegedly harassing conduct.

     73     Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969); see
also Marks v. City of Anchorage, 500 P.2d 644, 647 (Alaska 1972).

     74     Finch,  v. Greatland Foods, Inc., 21 P.3d 1282,  1288
(Alaska 2001).

     75     These  words  are  not  defamatory,  for  reasons  we
discussed  in Part III.A.  We therefore do not need  to  consider
whether under federal law Carpenter was a limited purpose  public
figure  and  whether actual malice in uttering these words  might
give rise to both a defamation claim and an IIED claim.

     76    We consider here only the words Leykis allegedly spoke
about  Carpenter.   We do not consider whether other  descriptive
words would invariably be qualifiedly protected.

     77      Carpenter   also  challenges  the  superior   courts
rejection  of  her  proposed Instruction  No.  15.   Because  the
instruction was not justified by either Carpenters IIED claim  or
her  spoliation claim, the superior courts refusal  to  give  the
instruction was not reversible error.

     78    Smithart v. State, 988 P.2d 583, 586 (Alaska 1999).

     79     Estate of Day v. Willis, 897 P.2d 78, 80 n.2  (Alaska
1995) (citation omitted).

     80    Hibbits v. Sides, 34 P.3d 327, 330 (Alaska 2001).

     81    Day, 897 P.2d at 81.

     82    Sweet v. Sisters of Providence in Wash., 895 P.2d 484,
492 (Alaska 1995).

     83    Day, 897 P.2d at 81.

     84     Ben  Lomond,  Inc. v. Schwartz,  915  P.2d  632,  635
(Alaska 1996).

     85     Petersen v. Mut. Life Ins. Co. of N.Y., 803 P.2d 406,
410 (Alaska 1990).

     86    Day, 897 P.2d at 81 (citation omitted).

     87    Id.

     88    Id. at 80-82.

     89     Finch  v. Greatland Foods, Inc., 21 P.3d  1282,  1288
(Alaska 2001).

     90    Id. at 1289.

     91    Id.

     92    Hibbits v. Sides, 34 P.3d 327, 330 (Alaska 2001).

     93    See Brumfield v. Exxon Corp., 63 S.W.3d 912, 920 (Tex.
App.  2002)  (holding  no intentional spoliation  occurred  where
defendant  was  not  on  notice that  evidence  was  relevant  to
claim).

     94     Cf. Sweet v. Sisters of Providence in Wash., 895 P.2d
484,  492  (Alaska 1995) (considering spoliation  negligent,  not
intentional,   when  hospital  failed  to  create  and   preserve
records);  Buzbee v. Ala. Waste Servs., Inc., 709 So. 2d  61,  66
(Ala.  Civ. App. 1998) (refusing to apply spoliation doctrine  in
absence of any evidence tending to prove intent).

     95    Cent. Bering Sea Fishermens Assn v. Anderson (Anderson
I), 54 P.3d 271, 277 (Alaska 2002).

     96    BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996).

     97     State Farm Mut. Auto. Ins. Co. v. Campbell, 538  U.S.
408 (2003).

     98    Id. at 416-18; Gore, 517 U.S. at 568.

     99    Gore, 517 U.S. at 574-75.

     100    Reprehensibility is determined by factors including

          whether:  the  harm caused  was  physical  as
          opposed  to  economic; the  tortious  conduct
          evinced  an  indifference to  or  a  reckless
          disregard of the health or safety of  others;
          the  target  of  the  conduct  had  financial
          vulnerability; the conduct involved  repeated
          actions or was an isolated incident; and  the
          harm  was  the result of intentional  malice,
          trickery, or deceit, or mere accident.
          
State  Farm, 538 U.S. at 419.  Westwood Ones conduct  only  meets
two factors (causing physical harm and acting deceitfully).

     101     Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24
(1991).   Cf.  Norcon,  Inc. v. Kotowski, 971  P.2d  158,  179-80
(Alaska  1999) (Eastaugh, J., concurring) (approving  high  ratio
where  compensatory  damages are small  relative  to  expense  of
litigation).

     102    Gore, 517 U.S. at 575 (emphasis added).

     103     Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24
(1991).

     104    AS 11.56.610; AS 12.55.035(c)(1)(A).

     105      We  have  contemplated,  without  so  ruling,   the
possibility  of  a punitive damages award for a spoliation  claim
even   if  no  compensatory  damages  were  awarded.   Hazen   v.
Municipality of Anchorage, 718 P.2d 456, 464 n.10 (Alaska 1986).

     106    We review the constitutionality of AS 09.17.020(j) de
novo,  adopting the rule of law that is most persuasive in  light
of  precedent,  policy, and reason.  Anderson v.  State  ex  rel.
Cent. Bering Sea Fishermens Assn (Anderson II), 78 P.3d 710,  713
(Alaska 2003).

     107     Evans  ex  rel. Kutch v. State, 56 P.3d  1046,  1055
(Alaska   2002)  (discussing  AS  09.17.010  and  .020  caps   on
noneconomic  and  punitive  damages,  respectively).   The  four-
member court unanimously upheld the punitive damages cap but  was
evenly  divided  on  the  constitutionality  of  the  noneconomic
damages   cap  and  the  punitive  damages  allocation   statute.
Justice  Eastaugh  joined the dispositional  opinion  written  by
Chief  Justice  Fabe;  Justices Bryner and  Carpeneti  dissented.
The  dissent argued that the noneconomic damages cap violated the
right  to  a jury trial and equal protection but did not  address
the separation of powers issue.  Id. at 1070-75.

     108    Id. at 1056.

     109    Id. at 1055-56 (quoting Franklin v. Mazda Motor Corp.,
704 F. Supp. 1325, 1336 (D. Md. 1989)).

     110    The Fifth Amendment of the United States Constitution,
applied  to the states through the Fourteenth Amendment, provides
in  general  terms that private property shall not be  taken  for
public  use,  without just compensation.  Similarly,  article  I,
section  18  of  the Alaska Constitution provides that  [p]rivate
property  shall  not be taken or damaged for public  use  without
just compensation.

     111    Reust v. Alaska Petroleum Contractors, Inc., 127 P.3d
807, 823-24 (Alaska 2005).

     112    Id. at 823.

     113    Id.

     114    Id.

     115    We review the constitutionality of AS 09.17.020(j) and
the  proper interpretation of AS 09.60.080 de novo, adopting  the
rule  of  law  that  is  most persuasive in light  of  precedent,
policy,  and reason.  Anderson v. State ex rel. Cent. Bering  Sea
Fishermens Assn (Anderson II), 78 P.3d 710, 713 (Alaska 2003).

     116    Anderson II, 78 P.3d at 722.

     117    Id. at 720.

     118    Id. (footnote omitted, emphasis in original).

     119    Id. at 720-22.

     120    Sponsor Substitute for House Bill 58,  34, 20th Leg.,
1st Sess. (1997).

     121    Anderson II, 78 P.3d at 721.

     122     Memorandum  from Rep. Brian Porter,  House  Majority
Leader,  to  Senator Tim Kelly, Senate Rules Chairman  (Apr.  16,
1997).

     123     Anderson  II, 78 P.3d at 721-22 (quoting  Memorandum
from  Rep.  Brian Porter, House Majority Leader, to  Senator  Tim
Kelly, Senate Rules Chairman (Apr. 16, 1997)).

     124    House Bill 58 Proposed Resolution Package, 20th Leg.,
1st Sess. (1997).

     125     The  statutes of several of the states  with  split-
recovery  statutes specifically mention both costs and  attorneys
fees.   See,  e.g.,  Iowa  Code Ann.   668A.1(2)(b)  (West  2004)
([A]fter payment of all applicable costs and fees, an amount  not
to  exceed  twenty-five  percent of  the  punitive  or  exemplary
damages  awarded  may be ordered paid to the claimant,  with  the
remainder  of  the  award  to  be  ordered  paid  into  a   civil
reparations   trust  fund  administered  by   the   state   court
administrator)  (emphasis  added);  Mo.  Ann.  Stat.   537.675(3)
(West  2004) (The state of Missouri shall have a lien for deposit
into  the  tort victims compensation fund to the extent of  fifty
percent of the punitive damage final judgment which shall  attach
in  any  such  case after deducting attorneys fees and  expenses)
(emphasis added); 2004 Utah Laws 164 (In any case where  punitive
damages are awarded, the judgment shall provide that 50%  of  the
amount of the punitive damages in excess of $20,000 shall,  after
an  allowable  deduction for the payment of  attorneys  fees  and
costs,  be remitted by the judgment debtor to the state treasurer
for deposit into the General Fund) (emphasis added).

     126    Anderson II, 78 P.3d at 721.

     127     See  Alaska  Native  Tribal  Health  Consortium   v.
Settlement  Funds Held for  Or To Be Paid on Behalf  of  E.R.  ex
rel. Ridley, 84 P.3d 418, 428-29 (Alaska 2004) (citing Cooper  v.
Argonaut Ins., 556 P.2d 525 (Alaska 1976)).

1    485 U.S. 46 (1988).

     2     Whether Carpenter is a public figure is a question  of
law  that  we  decide  de novo.  Mount Juneau  Enters.,  Inc.  v.
Juneau  Empire,  891  P.2d  829,  835  (Alaska  1995)  (citations
omitted).

     3     Gertz v. Robert Welch, Inc., 418 U.S. 323, 351  (1974)
(emphasis added).

     4     See,  e.g., Anderson v. Liberty Lobby, Inc., 477  U.S.
242, 246 n.3 (1986).

     5     See,  e.g.,  Carr v. Forbes, Inc., 259 F.3d  273,  278
(4th Cir. 2001).

     6     In  Mount  Juneau  Enterprises we explained  that  [a]
public  controversy  is not simply a matter of  interest  to  the
public,  but rather a real dispute, the outcome of which  affects
the  general public or some segment of it in an appreciable  way.
891  P.2d at 836 (quoting Waldbaum v. Fairchild Publns, Inc., 627
F.2d  1287,  1296  (D.C.  Cir. 1980)); see  also  Time,  Inc.  v.
Firestone, 424 U.S. 448, 454 (1976).

     7     Lerman v. Flynt Distrib. Co., 745 F.2d 123, 136-37 (2d
Cir.  1984)  (relying on Gertz, 418 U.S. at 351-52;  Time,  Inc.,
424  U.S.  at  454-55; Wolston v. Readers Digest Assn,  443  U.S.
157,  166  (1979); Hutchinson v. Proxmire, 443 U.S.  111,  135-36
(1979)).

8      47   Code   of   Federal  Regulations   (C.F.R.)   73.1202
(2004) provides that

          All    written   comments   and   suggestions
          received  from  the public  by  licensees  of
          commercial  AM,  FM,  TV  and  Class   A   TV
          broadcast  stations  regarding  operation  of
          their  station  shall be  maintained  in  the
          local  public  inspection  file,  unless  the
          letter  writer has requested that the  letter
          not  be  made  public or  when  the  licensee
          feels  that  it should be excluded  from  the
          public  inspection file because of the nature
          of  its  content,  such as  a  defamatory  or
          obscene letter.
          
9     See,  e.g.,  Chevalier  v. Animal Rehab.  Ctr.,  Inc.,  839
F.  Supp.  1224,  1234  (N.D. Tex. 1993) (plaintiff  appeared  on
television,  gave  interviews to magazines, and apparently  tried
to  orchestrate  a counter-letter-writing campaign);  Samuels  v.
Berger,  595  N.Y.S.2d 231, 233 (N.Y. App. Div. 1993)  (plaintiff
took out newspaper advertisements, purchased advertising time  on
local  radio,  spoke  at public hearings,  and  wrote  letter  to
editor).

     10    See  Gertz  v. Robert Welch, Inc., 418 U.S.  323,  352
(1974)  (holding  that lawyer who attended coroners  inquest  and
filed  action  for  damages did not engage the publics  attention
because   he  never  discussed  either  the  criminal  or   civil
litigation  with the press and was never quoted  as  having  done
so).

     11    See Bell v. Natl Republican Cong. Comm., 187 F.  Supp.
2d  605,  609,  612  (S.D.W.  Va. 2002)  (holding  that  campaign
volunteer  who  had  expressed  support  for  one  of  candidates
political  positions  in television advertisement  and  who  also
posed  for  photographs with candidate did  not  become  limited-
purpose  public figure because his actions were not  sufficiently
  significant  and because he did not assume  a position that . .
.  propel[led]  him  to the forefront of the  campaign)  (quoting
Suriano  v. Gaughan, 480 S.E.2d 548, 557 (W. Va. 1996)  (internal
quotations ommitted)); Nehls v. Hillsdale College, 178  F.  Supp.
2d  771,  778  (E.D. Mich. 2001) (holding that expelled  student,
whose  role in  controversy merited only short blurb  in  a  nine
page [magazine] article, did not assume position of prominence).

     12    Hutchinson, 443 U.S. at 135 (citing Wolston, 443  U.S.
at 167-68).

     13   Gertz, 418 U.S. at 351-52.

          Our  previous cases concluding that a person had become
a  limited-purpose public figure all involved situations in which
the  person  made public expressions of opinion or sought  public
approval.   See Mount Juneau Enters., Inc. v. Juneau Empire,  891
P.2d  829,  835  (Alaska  1995)  (holding  that  tramway  project
developer  who voluntarily sought public approval of project  was
public figure); Beard v. Baum, 796 P.2d 1344, 1353 (Alaska  1990)
(holding  that  former state transportation  department  employee
who  brought  allegations of departmental  corruption  to  public
attention was public figure); Rybachek v. Sutton, 761 P.2d  1013,
1014  (Alaska 1988) (holding that newspaper columnist on  natural
resource   and  mining  issues  injected  herself   into   public
controversy  on those issues); Moffatt v. Brown,  751  P.2d  939,
941  (Alaska  1988)  (holding that candidate  for  state  medical
board  voluntarily placed herself in position of public attention
given    strong    public    interest   in    board    appointees
qualifications).

     14    Despite the error of concluding that Carpenter  was  a
limited-purpose public figure, it was not error to grant  summary
judgment  against  Carpenter on her defamation  and  false  light
publicity claims.  Statements that do not reasonably imply  false
facts    even  those  targeted  at  private  figures    are   not
susceptible to defamation and false light liability.  Gertz,  418
U.S.  at  339, 341; White v. Fraternal Order of Police, 909  F.2d
512, 518 (D.C. Cir. 1990).

15   Gertz, 418 U.S. at 344 (footnote omitted).

     16   Id. at 345.

     17   Id. at 343.

     18   Id. at 348.

     19   485 U.S. 46 (1988).

     20   Id. at 56.

     21   Id. at 50.

     22   Gertz, 418 U.S. at 344.

     23    See  FCC Broadcast Radio Services, 47 C.F.R.   73.1202
(2004)  (requiring licensees of commercial AM, FM, TV, and  Class
A  TV  broadcast  stations to maintain all written  comments  and
suggestions  regarding  operation  of  station  in  local  public
inspection file).

     24    Dun  &  Bradstreet, Inc. v. Greenmoss Builders,  Inc.,
472 U.S. 749, 760 (1985).

     25   See Falwell, 485 U.S. at 52.

     26    New  York  Times Co. v. Sullivan, 376  U.S.  254,  272
(1964) (quoting NAACP v. Button, 371 U.S. 415, 433 (1963)).

     1    56 P.3d 1046, 1075-76 (Alaska 2002).

1    485 U.S. 46, 56 (1988).

     2     The  court today does not contend that the trial court
failed  to  properly  instruct the jury  on  incitement  or  true
threats.

     3     The  concurrence  argues  that  Carpenter  was  not  a
limited  purpose public figure, reasoning that her  participation
in  the  attempt to remove the Tom Leykis Show from the  air  was
insufficient  to confer limited-purpose public figure  status  on
her.   Concurrence  at 56.  I believe the trial  court  correctly
decided  that  Carpenter  was  a limited  purpose  public  figure
because  she  voluntarily  injected  .  .  .  herself  into   the
controversy  regarding whether the Tom Leykis Show should  remain
on  the  airwaves by purposely trying to influence  the  outcome.
Mount  Juneau Enters., Inc. v. Juneau Empire, 891 P.2d  829,  836
(Alaska  1995) (internal quotations omitted); see also  Gertz  v.
Robert  Welch, Inc., 418 U.S. 323, 351 (1974) (a limited  purpose
public  figure is one who voluntarily injects himself . . .  into
a  particular public controversy); Waldbaum v. Fairchild  Publns,
Inc.,  627 F.2d 1287, 1292 (D.C. Cir. 1980) (a person has  become
a  public  figure  for limited purposes if he  is  attempting  to
have,  or  realistically can be expected to have, a major  impact
on   the  resolution  of  a  specific  public  dispute  that  has
foreseeable and substantial ramifications for persons beyond  its
immediate participants).

     4    Slip Op. at 27.

5     Other  statements  in the broadcast  confirm  that  Leykiss
intent   extended  no  further  than  to  encourage  debate   and
petitions.   For  example, he stated early in the broadcast  that
Im  going to find out who these people are, and well put it up on
the  web  site.   When  the caller replied: That  would  be  just
wonderful,  Leykis continued: And were  were going  to  find  out
who  buckled to the pressure in terms of these advertisers.  Were
going  to find out, and were going to let you know who they  are.
And then you can write your own letters.

     6     This  echoes Leykiss earlier comment that  [y]ou  cant
stop  this show.  Oh, you can stop Juneau, Alaska.  But you  cant
stop  me.   And  Im  on the Internet baby. . . .  And  it  doesnt
matter;  you  can  take  me off the air.   It  will  not  matter.
Juneau,  Alaska  will still get this show . . . one  way  or  the
other.

7     In  addition  to  one  phone message,  Carpenter  testified
that  she  received hang-up calls and spoke with one  person  who
called her a jerk before she hung up.

     8     One  argued that [n]o one has the right to dictate  to
me  or to anyone else what I have the right to listen to . . .  .
Thats  what  they  make  off buttons for.   Another  echoed  this
thought,  suggesting  that the on-off  knob  is  the  appropriate
avenue  for  dealing with media one finds to be  distasteful.   A
third fax stated: Hey You Know What Thanks to You Tom Leykis  Has
Been  Cancelled.  It appears that a second page of this fax  also
stated: You are a jerk!  P.S.  Sit on it!

     9    485 U.S. 46 (1988).

     10   Slip Op. at 31.

     11   Slip Op. at 25.

     12   485 U.S. at 53.

     13   Id.

     14   Id. at 56.

15   Id. at 50.

     16   Id. at 51 (internal quotations and citations omitted).
          
     17   Slip Op. at 22-24.

     18   Slip Op. at 23-24.

19    I  do  not  contest the courts suggestion  that,  were  the
statements  unprotected for another established reason   such  as
true  threat of incitement to illegal activity  Leykis  would  be
liable  even without a showing of false facts stated with  actual
malice.   Slip  Op. at 23 n.44.  However, unless  the  speech  is
unprotected for another reason  a conclusion the court  does  not
reach   an  IIED claim by a public figure cannot succeed  without
meeting the heightened standards of Falwell.

     20     Because  the  court  assumes Carpenter  is  a  public
figure  and  the  cancellation of the show  a  matter  of  public
concern, the New York courts decision in Esposito-Hilder  v.  SFX
Broadcasting,  Inc.,  is  inapposite.  In  Esposito-Hilder,  that
court  upheld a ruling that an employee at a radio station had  a
claim  for IIED based on a competing radio stations broadcast  of
derogatory  comments about her wedding photo. 665  N.Y.S.2d  697,
700-01  (N.Y.  App. Div. 1997).  Unlike Carpenter, the  plaintiff
in  Esposito-Hilder was a private figure; her wedding  photo  was
not a matter of public concern.  Falwell did not apply.

     21   Watts v. United States, 394 U.S. 705, 708 (1969).

     22   Id.

     23   Id. at 706.

     24   Id. at 707-08.
          
     25   Id. at 708.
          
     26   458 U.S. 886, 926 (1982).

     27   Id. at 902.
          
     28   Id. at 927.
          
     29   Id. at 928.
          
          30   Watts, 394 U.S. at 708 (internal quotations & citation
          omitted).
          
     31   Falwell, 485 U.S. at 882.

     32   Slip Op. at 30.

     33   Slip Op. at 35.

34   Slip Op. at 34-35.

     35    376  U.S. 254, 279 (1964) (quoting Speiser v. Randall,
357 U.S. 513, 526 (1958)).

     36   Slip Op. at 35 (emphasis added).

     37   Slip Op. at 32.

     38   487 U.S. 474 (1988).
          
     39   Id. at 483.
          
     40   Id. at 483-84.
          
41   187 F.3d 672 (D.C. Cir. 1999).

     42   Slip Op. at 33-34.

     43   187 F.3d at 674 (quoting 47 U.S.C.  223(a)(1)(C)).
          
     44   Id. at 673.

     45   Id. at 677 (internal quotations omitted).

46    Mount  Juneau  Enters., Inc. v.  Juneau  Empire,  891  P.2d
829, 837 (Alaska 1995).

     47    Id.  at 837-38 (citing Pearson v. Fairbanks Publishing
Co., Inc., 413 P.2d 711, 713 (Alaska 1966)).

     48   418 U.S. 323, 344-45 (1974).

     49   Id. at 347.

     50    See,  e.g.,  1  Robert D. Sack,  Sack  on  Defamation:
Libel, Slander, and Related Problems  6.1 (3d ed. 2007).

     51   992 P.2d 1111, 1115 (Alaska 1999).

     52    See  Gay  v. Williams, 486 F. Supp. 12, 16 (D.  Alaska
1979) (interpreting Alaska law).

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